City of Cape Town v Rudolph and Others

• Jurisdiction: South Africa
• Citation: 2004 (5) SA 39 (C)

City of Cape Town v Rudolph and Others
2004 (5) SA 39 (C)

2004 (5) SA p39

Citation	2004 (5) SA 39 (C)
Case No	8970/01
Court	Cape Provincial Division
Judge	Selikowitz J
Heard	November 28, 2001; December 4, 2001; February 6, 2002; February 7, 2002; September 9, 2002; September 10, 2002; September 11, 2002; September 12, 2002; November 25, 2002; November 26, 2002; November 27, 2002; November 28, 2002
Judgment	July 7, 2003
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.

Flynote : Sleutelwoorde D

Land — Land reform — Eviction — Local municipality as landowner claiming eviction of squatters in terms of common law and E only if Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) found applicable, then in alternative in terms of s 5 of PIE — In last alternative constitutionality of provisions of PIE and, in particular, definition of 'unlawful occupier' attacked — Landowner alleging respondents are land grabbers and not 'unlawful occupiers' as intended in s 4 of PIE — Land grabber falling squarely F within meaning of 'unlawful occupier' — PIE applicable and common-law remedies accordingly not available — No case made out for urgent relief in terms of s 5 — Impugned provisions of PIE not unconstitutional — Application dismissed.

Interdict — Mandament van spolie — Eviction G of unlawful occupier — Mandament not available where Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) applicable and mandament effectively evicting unlawful occupier — Where s 4 of PIE applicable, common-law remedies not available.

Ejectment — Unlawful occupation of land — Eviction from — Application for H eviction in terms of common-law remedies, in alternative s 5 of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) — Avoidance of s 4 of PIE of no avail since common-law remedies not available where s 4 applicable — No case made out for urgent relief under s 5 — Application dismissed.

Ejectment — Unlawful occupation of land — What constitutes — 'Unlawful I occupier' in terms of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) including persons who are 'squatters' or 'land grabbers'.

Constitutional law — Human rights — Right to housing — Section 26 of Constitution of the Republic of South Africa Act 108 of 1996 — Constitutionality J

2004 (5) SA p40

of provisions of Prevention of Illegal Eviction from and Unlawful A Occupation of Land Act 19 of 1998 (PIE) and, in particular, definition of 'unlawful occupier' attacked — In exercising discretion to evict conferred by s 4(8), 4(9) and 4(12), court to be guided by what is 'just and equitable' and 'reasonable' — Common law ameliorated accordingly — Constitutional issue whether deprivations were arbitrary — Section 26(3) of Constitution obliging land-owners to tolerate presence of unlawful occupiers by prohibiting B evictions 'without an order of court' — Land owners to follow procedures set out — Such constituting legitimate governmental purpose and deprivation well designed for said purpose — Special provision made for cases of urgency — Deviation from usual statutory procedure allowed — Deprivation limited in extent — Procedural requirements of PIE accordingly not C 'arbitrary' — In deciding whether eviction just and equitable, court to consider 'all the relevant circumstances' — As to determination of date of eviction, PIE merely codifying courts' common-law discretion — PIE providing guidance as to exercise of this discretion in matters involving eviction of 'unlawful occupants' — PIE therefore regulating exercise of property rights — Unconstitutional expropriation orders liable to D be set aside on appeal — By enacting PIE, Legislature doing no more than Constitution obliged it to do — Impugned provisions not unconstitutional.

Contempt of Court — Disobedience of Court order — Non-compliance with Constitutional Court order — Application to compel local municipality to comply E with its statutory and constitutional duties — Constitutional Court having pronounced upon nature of applicant's constitutional obligations and declaring that housing programme in area inconsistent with Constitution, for its failure to make reasonable provision for people 'with no access to land, no roof over their heads, and who are living in intolerable F conditions or crisis situations' — Constitutional Court holding that local authority was under duty to implement programme with due regard to urgency of situations it was intended to address — Applicant displaying unacceptable disregard for order of Constitutional Court and therefore for Constitution itself — Need for emergency provisions of kind required by Constitutional Court underlined by fact that housing situation continues to deteriorate — Appropriate relief to be G effective — Structural interdict granted — Respondents' application granted.

Headnote : Kopnota

The applicant brought an urgent application for the eviction of certain squatters from its property. The respondents opposed the application and brought a counter-application to compel the applicant H to comply with its constitutional and statutory obligations relating to housing. The applicant was a metropolitan municipality and legal persona. The first to 47th respondents were all individuals who were 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' (the park). The 48th and 49th respondents were those possible further persons who respectively I were currently respectively unlawfully occupying and intending to unlawfully occupy the park and whom the applicant had been unable to identify. When it came to the applicant's notice that first respondent had erected a shack in the park, efforts were made to persuade him to remove the structure. The first respondent advised the applicant's officials that he had waited long enough J

2004 (5) SA p41

for applicant to provide him with formal housing and had accordingly moved to the A park from the nearby backyard where he and his family had rented space that he could no longer afford. A meeting with representatives of the local community failed to resolve the impasse but demonstrated that the first respondent's action enjoyed considerable support from the local community. Twenty-three new structures appeared in the next few days and more were under construction. The respondents filed affidavits demonstrating their desperate housing situation. Many were B unemployed and few could afford to pay even a paltry rental, let alone a reasonable rental should a lease be available to them, and many had been on municipal housing waiting lists for more than a decade.

The applicant described the events as an 'orchestrated land grab' during which the occupiers 'decided to take the law into their own hands and to resort to self-help by invading the park for residential C purposes'. It acknowledged that there was 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, and stated that it had a policy 'in place' with which it was complying and that it was ensuring the progressive realisation of access to housing to those within its jurisdiction who D had applied therefor. The applicant further stated that it was limited by inadequate financial resources; that there was an enormous delay in the allocation of housing; that demand outstripped the supply 'by a considerable margin'; and that the respondents, by resorting to self-help, had jumped the queue and sought a manifestly unfair advantage over many thousands of people on the waiting list who had a E legitimate expectation of receiving housing in turn according to the date of their application. According to the applicant the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE') did not apply to respondents' actions, and it therefore sought 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, it sought relief in terms of s 5(2) of PIE. The applicant submitted, in F the event of a finding that it was not entitled to relief under s 5, that PIE was unconstitutional at least insofar as it sanctioned 'land grabbing'. On the basis that PIE did not apply, the applicant sought the common-law remedies of the mandament van spolie, alternatively an interdict and mandamus, in the further alternative a declarator. If PIE did apply, the applicant in any event asked for a spoliation order. G

Held, that both the plain language and the purpose of PIE were irreconcilable with the notion that PIE was not applicable to the circumstances of this case. Whether the respondents were characterised as 'squatters' or 'land grabbers', they fell four square within the terms of the definition of 'unlawful occupier', and there was no warrant for depriving them of the protection of PIE. (At 59G - H.) H

Held, further, that to hold that the common-law remedies for the eviction of unlawful occupiers existed alongside the remedies provided for in PIE, at the option of the applicant, or at all, would fundamentally undermine the overall purpose of PIE and particularly the purpose of the protections provided for therein. (At 60J - 61A/B.) I

Held, further, that as in the case of other common-law remedies which effectively evicted an 'unlawful occupier', the mandament van spolie was not available where PIE applied...