City of Cape Town v Rudolph and Others

• Jurisdiction: South Africa
• Judge: Selikowitz J
• Judgment Date: 07 July 2003
• Citation: 2004 (5) SA 39 (C)
• Docket Number: 8970/01
• Counsel: J A le Roux SC (with him R Williams) for the applicant. G Budlender (attorney) for first to eighth respondents. P R Hathorne for the tenth to 12th respondents. J N T Lourens for the ninth and 13th to 49th respondents.
• Court: Cape Provincial Division

Selikowitz J:

Introduction E

Applicant is the City of Cape Town, a metropolitan municipality and legal persona established in terms of the Local Government: Municipal Structures Act 117 of 1998 read with the Province of the Western Cape: Provincial Notice 479/2000 dated 22 September 2000. F

First to 47th respondents are all individuals who are described by applicant as 'presently unlawfully occupying a structure on a public open space in a built-up urban area registered in applicant's name' as erven 2999 and 3366, Cape Town (hereinafter 'the park'). The park, which is situated in a suburb known as Valhalla Park, measures 9 303 square metres. G

Forty-eighth and 49th respondents are those possible further persons who respectively are currently unlawfully occupying and intend to unlawfully occupy the park and whom applicant has not been able to identify.

Fiftieth respondent was the member of the National Executive who is responsible for the administration of the Prevention of Illegal H Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereinafter 'PIE'). The Minister of Housing was joined as the constitutionality of PIE was an issue in the proceedings. She advised that she would abide the decision of the Court. Applicant thereafter withdrew the application against the 50th respondent. I

Reference hereinafter to 'respondents' is a reference to the first to the 47th respondents all of whom are occupying the park and all of whom have opposed the application.

The park is zoned 'public open space' and is situated in a residential area. Applicant states that prior to 3 October 2001 the park had been J

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dedicated and used as a public park with playground equipment for children. Respondents dispute this. They aver that A only an area of 900 square metres is tarred and designed as a play park. The tarred area is, in fact, used by an adjoining occupier to store vehicles which he repairs.

On 3 October 2001 it came to applicant's notice that first respondent had erected a shack in the park. Efforts were made to persuade him to remove the structure. First respondent advised B applicant's officials that he had waited long enough for applicant to provide him with formal housing and had accordingly moved to the park from the nearby backyard where he and his family had rented space which he could no longer afford. A meeting with representatives of the local community failed to resolve the impasse but demonstrated that first respondent's action enjoyed considerable support from the local C community. The number of 'squatters' grew overnight and applicant's attempts to remove them and to demolish their shacks with the South African Police Service in attendance met with a hostile reaction from a large group of local residents who gathered to demonstrate their opposition to applicant's actions. Applicant's employees were forced D to retreat.

By 12 October 2001, the settlement in the park had grown to 23 structures and more were under construction. Applicant describes the events as an 'orchestrated land grab' in terms of which the occupiers 'decided to take the law into their own hands and to resort to self-help by invading the park for residential purposes'. E

Applicant states further that '(t)he respondents are unlawfully occupying the applicant's property and they do not have the consent of the applicant either expressly or tacitly to occupy the park in question. They have no other right in law whatsoever.' F

It is acknowledged by applicant that there is a duty on local government when developing housing to promote the establishment, development and maintenance of socially and economically viable communities and of safe healthy living conditions. There is also a duty to provide community and recreational facilities and to ensure that conditions which are not conducive to health and safety are eliminated. G

Applicant states that it has a policy 'in place' with which it is complying. It is ensuring the progressive realisation of access to housing to those within its jurisdiction who have applied for housing. It is limited by the available financial resources which are extremely inadequate. There is an enormous delay in the allocation of housing and the demand outstrips the supply 'by a considerable margin'. The H respondents, by resorting to self-help, have jumped the queue and seek a manifestly unfair advantage over many thousands of people on the waiting list who have a legitimate expectation of receiving housing in turn according to the date of their application.

Respondents reply that Valhalla Park is faced with a serious lack of access to housing and that applicant - and I its predecessors - have failed dismally to deliver adequate housing. Indeed, during the period 1994 to 2002 only 45 new houses were built in Valhalla Park and 12 rental houses became available. Valhalla Park is by no means a unique area in regard to lack of access to housing and overcrowding. J

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Respondents have filed affidavits which demonstrate their desperate housing situation. Many are unemployed and few can afford to A pay even a paltry rental, let alone a reasonable rental should a lease be available to them. The affidavits show that families lived in overcrowded yards; in abandoned car wrecks and one family even found refuge overnight in a school which they had to vacate at the crack of dawn each day to avoid detection. The misery and a feeling of hopelessness are manifest in every affidavit. Many of the B respondents have been on municipal housing waiting lists for more than a decade.

Applicant confirms that there are in excess of a quarter of a million applicants for housing on its waiting list. The waiting list grows by 25 000 names per year. The available funds which are granted and C devolve from the National Government to applicant for the building of homes in the Cape Town metropolitan area is only enough to build 10 000 homes per year. The backlog is, accordingly, growing by 15 000 homes a year.

Applicant states that it has, at all times, been in possession of the park and that it has 'been despoiled of its possession'. D

Applicant contends that PIE does not apply to respondent's actions. It therefore seeks common-law relief in order to regain possession of the park. In the alternative, and only in the event of PIE being found to apply, applicant seeks relief in terms of s 5(2) of PIE. Should the court find that applicant is not entitled to relief under s 5, then applicant submits that PIE is unconstitutional at E least insofar as it sanctions 'land grabbing'.

In its notice of motion applicant prays for an order:

1.

Condoning the applicant's failure to comply with the time limits, forms and procedures prescribed by the Rules of Court and hearing this application as a matter of urgency in terms of Rule 6(12) F of the Rules of Court.

2.

That a rule nisi do issue calling upon the respondents to give reasons, if any, on or before the return day on Thursday, 22 November 2001, why a final order in the following terms should not be granted: G

2.1

That a declaratory order be issued in which it is declared that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) are not applicable to these proceedings in which the eviction of the respondents is sought. H

2.2

That the applicant's peaceful and undisturbed possession of the public open space registered in the Deeds Office, Cape Town, in the applicant's name as Erf 3366, Cape Town, Western Cape (hereinafter referred to as 'the park') be restored ante omnia and that the respondents be ordered to vacate the park and to demolish and remove all structures and makeshift dwellings and their belongings I and/or personal effects from the park, all by no later than 15:00 on Friday, 30 November 2001.

2.3

In the alternative to para 2.2, that the respondents be interdicted and restrained from being in the park for the purpose of unlawfully occupying it or residing there and erecting and/or J

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completing any structure or makeshift dwelling therein and that they A vacate the park and remove all structures and makeshift dwellings and their belongings and/or personal effects from the park, by no later than 15:00 on Friday, 30 November 2001.

2.4

In the further alternative and only in the event of paras 2.2 and 2.3 not being granted, that a declaration be issued that the applicant, in its capacity as the legal owner and possessor of the B park, has the right to retain possession thereof to the exclusion of anybody who wishes to occupy it unlawfully for the purposes of the erection of any structure or makeshift dwelling and that, to enforce the applicant's possessory rights, it is entitled to evict the respondents therefrom. C

2.5

In the further alternative and only in the event of paras 2.2, 2.3 and 2.4 not being granted, that pending the return day, alternatively, the outcome of proceedings for a final order to be instituted by the applicant on or before Friday, 14 December 2001, the respondents be evicted from and ordered to vacate the park and D to demolish the structures erected in the park and to remove their belongings and/or personal effects from the park by no later than 15:00 on Friday, 30 November 2001.

2.6

That in the event of the respondents failing to comply with any of the orders in paras 2.2 to 2.5 above:

2.6.1

the Sheriff and/or any persons appointed by him are E authorised to evict the respondents from the park, if necessary by the use of such force which may be reasonably necessary in the circumstances;

2.6.2

the Sheriff and/or other persons appointed by him are authorised to demolish and remove the structures and makeshift F dwellings...