Administrator, Cape, and Another v Ntshwaqela and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Hoexter JA, Nestadt JA, Steyn JA and Nicholas AJA
• Judgment Date: 30 November 1989
• Citation: 1990 (1) SA 705 (A)
• Hearing Date: 07 November 1989
• Court: Appellate Division

Nicholas AJA:

Dassenberg farm is in the Cape Peninsula. It lies in the angle formed by the Noordhoek main road, which runs between Fish Hoek and Chapman's Peak past the village of Noordhoek, and Ou Kaapseweg. Portions of the farm on the hill-side are scrub and unsuitable for C farming. Dassenberg has for 90 years been owned by the De Villiers family and in 1987 farming operations were still being carried on there by Mr D C de Villiers.

Across the Noordhoek road from Dassenberg is a piece of land called The Tip. It is owned by the local authority which until June 1987 was the Divisional Council of the Cape and thereafter was the Western Cape Regional Services Council. One part of this land is an official refuse D dump; other parts are scrub.

In June 1987 the owners of Dassenberg granted an option for the sale of the farm to a syndicate of four persons who proposed to develop it as small-holdings. The purchase price was R800 000. It was provided in E clause 10.14:

'Die verkoper bevestig hiermee dat alle plakkers wat hulle tans op die eiendom bevind, onwettig daar is en nie die toestemming van die verkoper gekry het om aldus te plak nie. Die verkoper magtig hiermee die koper om die nodige stappe te doen ten einde van die plakkers ontslae te raak en vir die doel alle dokumente te teken wat nodig mag wees. Die koste F verbonde aan die verwydering van die plakkers sal deur die koper gedra word.'

A squatter problem had plagued Dassenberg and also The Tip for many years before 1987. Squatters had settled in large numbers on the land amongst the scrub and erected huts made of wood, corrugated iron and plastic. They ignored or resisted all demands to vacate. The problem was G aggravated in 1987 by a sudden uncontrolled growth in the squatter population. The authorities (the Office of Community Services, Western Cape, an organ of the Cape Provincial Administration; and the South African Police) were gravely concerned. The situation was unacceptable for social and public health reasons: there was no water supply or toilet facilities or any other services, and the area was dirty and H strewn with rubbish and paper.

The owners and the developers were also gravely concerned. Unless the farm could be cleared of squatters, the developers would presumably not exercise their option to purchase it. They had heavy present and future financial commitments. Apart from the purchase price of R800 000, they I had prospective development costs amounting to R3 057 500, including professional fees of R60 000 which had already been incurred. Various options under the Prevention of Illegal Squatting Act 52 of 1951 had been considered and rejected, namely:

(a)

Prosecutions under s 1 and, in the event of conviction, ejectment orders under s 3. This was rejected because the J procedure might

Nicholas AJA

A lead to long drawn-out proceedings accompanied by undesirable publicity, which would not have the desired result unless convictions were obtained and orders of ejectment granted.

(b)

Demolition and removal of the materials from the land by the owner without a court order under s 3B(1)(a). This was not a practicable option having regard to the numbers of the squatters and the personal dangers involved, and it would not solve the B problem of the resettlement of the squatters, who would presumably just go to neighbouring properties.

(c)

An application to the magistrate under s 5 that he exercise his administrative powers to effect the removal of the squatters. In the nature of things such a procedure would be expensive, would C be accompanied by publicity and would be time-consuming.

For the owners the presence of the squatters was a running sore. From time to time after December 1982 D C de Villiers had taken steps to clear Dassenberg of squatters and to demolish their structures, but D these were not attended by any success. By early 1987 De Villiers found that the ongoing task was too much for him. He laid charges with the police on 7 March 1987, but no prosecution followed. On 9 April 1987 the local authority gave De Villiers a warning to remove from Dassenberg unauthorised structures (ie the squatter's huts) on pain of prosecution. On 14 April 1987 De Villiers, together with two representatives of the E Regional Services Council, and a member of the South African Police, met on the farm. They told the squatters that they had to leave Dassenberg. Arrangements had been made by the Divisional Council (which still existed at the time) for alternative sites at Khayelitsha. The squatters were told that if they left voluntarily no charges would be laid against them, but if they declined to leave by 15 April 1987 they would be F charged on 16 April 1987. The indications were that the squatters would leave voluntarily on 21 April 1987, for which date transport was arranged. On that day the squatters held a religious service. After it, most of the squatters had stated that they were not prepared to go to Khayelitsha, and only two families left

G On 10 August 1987, a meeting was convened which was attended by representatives of the local authority, D C de Villiers and a representative of the developers. The purpose was to ascertain the best method of resolving the squatter problem. On 28 August 1987 and again in the early part of November 1987 notices requiring them to vacate the farm were delivered to the squatters. The notices were ignored. On 15 H September 1987, a further meeting was convened by Lt Col I J M van Niekerk, the South African Police District Commandant, Wynberg, in order to discuss possible action against the squatters. It was decided that the squatters be informed of the possibility of criminal charges being preferred against them, and that they be given the opportunity to vacate the site. This decision culminated in an operation aimed at the removal I of the squatters which took place on 2 December 1987.

On 12 October 1987 arrangements were made by the Cape Provincial Administration with Earthmovers United Western Cape (through Mr Vlok, who was one of the developers) to provide 15-ton trucks for the J transportation of the squatters to Khayelitsha. On 20 October 1987 a

Nicholas AJA

A further meeting took place in the office of Lt Col Van Niekerk in regard to the matter of transport and the resettlement of the squatters at Khayelitsha. On 26 November 1987 a third meeting took place in the office of Lt Col Van Niekerk when the final arrangements were made for the carrying out of the operation.

The main roles in its execution were to be played by the Cape B Provincial Administration ('the CPA') and the South African Police ('the SAP').

The part of the CPA would be limited to the making of arrangements for transporting the squatters and their possessions to Khayelitsha. It was stressed that, in accordance with policy, the Province would in no circumstances be involved in physical action against the squatters. The C CPA was also to arrange with the local authority concerned for sites to be provided at Khayelitsha, where there would be tents and water and toilet facilities.

The role of the SAP appears from an 'operation order' drawn up by Lt Col Van Niekerk. The object was stated to be the removal to Khayelitsha D of 650 Black squatters, living in 107 corrugated iron and plastic structures in an area between Ou Kaapseweg and Noordhoek road, and between Kommetjie and Noordhoek roads. The SAP were to take full control of the operation and to ensure that the squatters were removed, either voluntarily or by court order. The forces to be deployed were to be some 70 uniformed and detective members of the SAP and 100 special E constables, equipped with radios and vehicles (including 'Vlokvoertuie', of which the Minister of Law and Order is presumably the eponym). For the execution of the plan, the forces were to be allotted to nine demarcated sectors. There were also to be a 'grypgroep' consisting of 35 policemen, 30 of whom were to be uniformed; a group of people to man a roadblock; a helicopter to provide air support in the event of squatters F escaping from the net at the start of the operation. The men were to assemble at 04h30 on 2 December 1987 at a point near the junction of the Noordhoek road and Ou Kaapseweg, and to be ready to move to their respective positions at 04h45. On arrival at their sectors, the special constables were to cordon them off in order to ensure that no squatter escaped. The respective sector commanders, assisted by interpreters, G were then to warn the squatters that they were being removed to Khayelitsha and that they were immediately to pack up their personal possessions and load them onto trucks which would be waiting. The squatters were to be made to understand that should they refuse to move, the hut-owner would be arrested and taken to court. If arrests were effected, the prisoners were to be conveyed to Fish Hoek charge office H and their fingerprints taken and charges drawn up. They were then to be taken to the Simonstown magistrate's court. The possessions of any squatter arrested because he refused to move were to be packed up by the other occupants of the dwelling concerned and loaded onto the trucks. I After the squatters and their possessions had been loaded, the trucks were to proceed to an assembly point. From there the trucks were to be escorted by police along the Main Road and Baden-Powell Drive, Muizenberg, to Khayelitsha, where the squatters were to be handed over J to a branch of Community Services of the Cape Provincial Administration.

Nicholas AJA

A The operation was carried out as planned. Themba Ntshwaqela, one of the squatters, gave an eyewitness account. In summary his story was this. Since 1973 he had been living on Dassenberg, where he had built a shack of wood and corrugated iron, consisting initially of three rooms, and later, as his family...