Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew and Another

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 01 April 2016
• Citation: 2017 (1) SA 403 (GJ)
• Docket Number: 2010/3234
• Hearing Date: 01 April 2016
• Counsel: A Bester for the applicant.T Ngcukaitobi (with N Alli and L Siyo) for the first respondent. GB McMaster (attorney) for the second respondent.
• Court: Gauteng Local Division, Johannesburg

Spilg J:

Introduction

[1] Chapelgate Properties 1022 CC is the registered owner of immovable property situated in Kew. The property is zoned for industrial use only. A factory was built on the property but as with a number of D commercial and industrial buildings in Kew and the adjacent Marlborough area it was taken over by unlawful occupiers as living quarters.

[2] In early-2010 an application was brought by Chapelgate to evict all those who occupied the property. Default judgment was granted in May 2010. This was followed by a rescission application in June of the same E year. An application to join the City Council of Johannesburg (the City) was also brought. Rescission of judgment was granted a few months later in October. It was conceded that occupation was unlawful and the issue turned on the respective obligations of the applicant and the City to provide shelter for those who qualified for protection under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of F 1998 (PIE).

[3] At the end of August 2012 the court ordered the occupiers to vacate and called on the City to show cause why it should not provide temporary emergency housing under its housing programme in accordance with the Constitutional Court decision in G City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 039 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33).

[4] A housing report was produced and the matter subsequently came before me. The argument centred on the obligations of the City to provide temporary housing to indigent persons and whom among the H respondents qualified.

The parties then advised that they were in settlement negotiations and the rule that I had initially issued in March 2013 was extended from time to time. However during the course of argument I had raised a concern regarding whether foreigners who had not entered the country legally I and who had not applied for an asylum seeker's permit in terms of the Refugees Act 130 of 1998 were eligible for temporary emergency housing.

[5] Subsequently I was advised that the parties wished to argue whether 'illegal foreigners' were eligible for temporary emergency housing. J

Spilg J

A [6] Advocate Ngcukaitobi on behalf of the occupiers ('the respondents') submitted that the issue came down to whether it is constitutionally permissible for the City's policy or practice to distinguish between South Africans and foreigners when providing temporary emergency accommodation. I disagree. Such an enquiry presupposes that at least one of the issues for determination on the papers is whether the City's decision B to discriminate between citizens and foreigners, or a particular category of foreigner, is rationally supportable in a democratic society. This however is not the case. If it had been then one would expect the City to explain why it discriminates against non-citizens and to provide the type of detail mentioned, albeit in another context, in Eagle Valley Properties 250 CC v Unidentified Occupants of Erf 952 Johannesburg C [2011] ZAGPJHC 3 para 40, namely:

(a)

Sufficient information based on informed statistical projections of the anticipated number of indigent households in order to ascertain the number of shelters that must be provided on the requirement D side of the equation; and

(b)

on the capacity side of that equation, what budget and other essential resources are being and can be provided (including possibly job creation and community self-upliftment programmes); and

(c)

such other information as is necessary to establish what objectives in real terms can be attained in the short, medium and long terms E relevant to the City's contention that it is unable to obtain, or secure from the other spheres of government, the resources necessary to provide temporary emergency shelter to unlawful occupiers of privately owned properties.

[7] My concern arose for two reasons. Firstly, because of the possible F conflict between the Immigration Act 13 of 2002 which declares certain categories of foreigners to be illegally in the country and obligations that may be imposed on an organ of state (in this case the City) to provide housing for those who are indigent. Secondly, the overwhelming number of occupiers in this case were non-citizens and the number of cases G coming before the courts in the wake of Blue Moonlight created the risk of indigent citizens being unable to secure temporary emergency housing because the limited space and financial resources as claimed by the City in its housing report, if correct, would be taken by non-citizens who may have no lawful right to be in the country.

H [8] The Immigration Act identifies who is entitled to lawfully enter the country and the Refugees Act 130 of 1998 makes provision for obtaining a temporary asylum seeker's permit to lawfully sojourn in the country pending the final determination, whether on review or appeal, of an application for refugee status. In this judgment and adopting the definitions in s 1 of the Refugees Act, an asylum seeker is a person 'who I is seeking recognition as a refugee in the Republic' while a refugee is anyone 'who has been granted asylum in terms of this Act'.

[9] The issue of concern to the court was therefore limited to non-South African citizens who have no legal right to be in the country. They would include adults as well as children and the infirm. Moreover the issue on J the papers before me is confined to a legal one based on an interpretation

Spilg J

of the applicable legislation, which appears to be PIE, the Immigration A and Refugees Acts, the Children's Act and the Constitution. The case was not, nor could it be, for reasons already stated, be concerned with whether a decision taken in any housing legislation, code or programme to draw a distinction between citizens and foreigners passes constitutional scrutiny. That would be a factual enquiry falling outside these papers. B

Nationality of the evictees

[10] When Chapelgate instituted eviction proceedings in 2010 there were approximately 300 occupiers. They now number 161 of whom the large majority are not South African citizens. Of the total number C 21 were still minors when the last census of the building's occupants was conducted in 2013. A number were 16 years of age or over at the time. Although the census is not a model of clarity it appears that over half the minors were born in South Africa to the non-citizen occupiers. In addition there is one non-citizen occupier who is disabled and who is being cared for by a relative who is a Zimbabwean national. D

[11] A list was prepared of the occupiers. Of the foreigners only one or two produced any papers indicating that they are lawfully entitled to reside in the country either by reason of holding a valid permit, visa, or have applied for asylum and are awaiting the outcome of an application, review or appeal under either the Immigration or Refugees Act. E

[12] There are only 64 South African citizens out of the total of 161 occupiers, a percentage of just under 40. In addition 22 Zimbabweans and 2 Mozambicans claim to have rights to remain in South Africa. In the result 73 foreign nationals cannot produce a document to demonstrate the basis upon which they remain in the country; they F accounted for 45% of the total number of occupiers.

[13] The list indicates that of all the current respondents:

(a)

41 are South Africans or in the one case is married to a South African. There are 5 minor children among them;

(b)

44 have produced Zimbabwean identification. G

Of these, 9 hold South African identity documents. No additional information was provided and for present purposes it is assumed that they enjoy dual nationality. Eight others either have a work visa or a certificate of exemption while the remaining 26 who possess Zimbabwean passports have no apparent entitlement to be in the country. In one case the asylum seeker's permit [1] has expired; H

(c)

8 are Mozambican;

(d)

1 is a Malawian;

(e)

63 are unable to verify their country of origin. Of these:

(i)

23 claim to be South Africans. Most are minors;

(ii)

8 claim to be Mozambicans of whom two claim to have visitor visas; I

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(iii)

A 10 claim to be Zimbabweans, one of whom claims to hold an asylum permit;

(iv)

22 have produced no identity or other documents indicating their nationality;

(f)

only three hold current asylum permits that were presumably renewed. The only one who identifies his country of origin claims to B be Zimbabwean.

The balance is made up of those who no longer require accommodation or have returned to Zimbabwe.

[14] The high number of non-South African respondents makes it necessary to consider the rights they are accorded in respect of accessing C basic shelter.

[15] In order to appreciate what rights may be infringed, including those under the Bill of Rights, it is necessary to first consider the protection afforded to a person facing eviction under PIE before ascertaining whether these are restricted in the case of illegal foreigners.

The eviction process under PIE D

[16] Unless the special provisions contained in s 5 of PIE apply, an eviction order can only be granted against an unlawful occupier if it is just and equitable to do so. Sections 4(6) and (7) of PIE set out the E considerations which are to be taken into account, depending on whether occupation of privately owned land has been for longer than six months or not. In the present case s 4(7) is relevant. It provides:

'(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a F court may grant an order for eviction if it is of the opinion that it is just and equitable to...