City of Ekurhuleni Metropolitan Municipality v The Unknown Individuals Trespassing
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Spilg J |
| Judgment Date | 22 February 2023 |
| Citation | 2023 JDR 0838 (GJ) |
| Hearing Date | 22 February 2023 |
| Docket Number | 2019/25865 |
| Court | Gauteng Local Division, Johannesburg |
Spilg J:
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INTRODUCTION:
Two separate incidents occurred at the RDP housing development (also referred to as the housing project) in Palm Ridge which gave rise to the issues before this court. [1]
Each involved a different group of people who attempted to, or had already, come onto the development.
It is common cause that the incident which concerns the first group (who the court papers identify as the first respondent) took place in July 2019.
The applicant, which is the City of Ekurhuleni Metropolitan Municipality ("the Metro"), brought an urgent application against anyone attempting to occupy the development. Those who came to oppose the interim order granted at the time (in July 2019) put their names on a list required by the court order and identified themselves as falling within the first respondent group. This occurred sometime later in October of that year.
Initially the Metro claimed that the second incident, involving a fresh land grab by another group, occurred in June 2021. It brought an application to join this new group in the original proceedings.
The Metro contended that, while it remained pending, the interim order granted in July 2019 covered any subsequent attempt at occupation of the development by others, therefore entitling it to join this new group who, it alleged, were attempting to invade the RDP development.
This group came to be cited as the eighth respondent.
The eighth respondent group allege that they comprise both individuals who were allocated RDP houses and had resided in the development since January 2020
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as well as others who came onto the development by no later than that date. [2]
THE FIRST INCIDENT (which concerns the first respondent group)
The first incident was an alleged land invasion attempted by a group of individuals in July 2019 [3] . The Metro brought an urgent ex parte application interdicting those who it identified as "The Unknown Individuals Trespassing and/or Attempting to Invade and/or Settle on the Immovable Property Described as Farm Rietfontein 153 (also known as Palm Ridge extensions 10 and 18 to 30)" from trespassing on, invading or settling in the development.
I granted urgent interim relief on the morning it was sought, which was on 24 July 2019.
As already mentioned, the incident giving rise to the urgent application involved the group who comprise the first respondent.
Members of this group reside in the greater Palm Ridge area. [4]
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Those comprising the first respondent group initially claimed that they should have been allocated housing in the development but due to corruption and maladministration others were given preference.
Some in this group produced documents showing that their names had been placed on the official RDP housing list in 1996. That is over a quarter of a century ago.
Their anger and frustration was exacerbated by a concern that this project will be the last RDP development in the area. If so, then when they eventually are given housing they will have to relocate a considerable distance away from the areas where they and their families have established relationships, enjoy a familiar environment and community and where their children have also integrated into a particular schooling and social environment. [5]
It is evident that the reality for the individual households making up the group is that when they are eventually provided housing they will suffer an involuntary removal and displacement to an area which will be a considerable distance from where they have resided. The papers do not indicate that the authorities have allayed their fears by suggesting otherwise.
The first respondent's main contentions with regard to the urgent relief obtained are that;
they were already in occupation of houses in the development and this was known to the Metro when the application was launched. Accordingly, the relief sought was not only misconceived but disingenuous;
even if they were on the development for a brief time, they had erected structures and the Metro had taken the law into its own hands by forcibly removing them without a court order first being served on them.
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they took occupation to protect their interests in ensuring a fair allocation of housing in the project and to prevent what they said was an imminent land invasion by others.
It is however common cause that at the time the first respondent filed its conditional answering affidavit, those who claimed to fall within its ambit were neither in occupation nor possession of any site in the development.
Perhaps of greatest significance is that the 880 household heads who identified themselves as comprising the first respondent group said that they "reside in and around the townships of Katlehong and Thokoza, as well as the immediate surrounding areas situated within the jurisdiction of . . . the City of Ekurhuleni" [6]
A little later the deponent to the answering affidavit said that many in the group are also old age State pensioners, low-income earners and unemployed people who are "homeless, shack and backyard dwellers" while others are members of the uMkhonto we Sizwe Military Veterans Association ("the MK Veterans") who, despite having applied, are still waiting for housing. [7]
In this context it must be noted that there are also some 670 MK Veterans who have in fact been allocated RDP houses in the development and who the Metro alleges would be prevented from taking occupation by reason any unlawful land occupation.
Moreover, the Metro was unaware of the identities of those who were attempting to occupy the development and cited them as "The Unknown Individuals Trespassing and/or Attempting to Invade and/or Settle on the Immoveable Property described as Farm Rietfontein 153 (and also known as Palm Ridge Extensions 10, 18 to 30)".
It therefore sought an additional order in line with the procedure identified by the Full Court in Mtshali and others v Masawi and others 2017 (4) SA 632 (GJ) at
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para 201, which require those who intended opposing the application to identify themselves by name and physical address.
Two features of the list that was later produced by the first respondent group stand out.
The first is that half of the first respondent group can produce an official reference number acknowledging their application for housing. The list provided (Annexure AA1) shows that 446 household heads have been on a waiting list for housing since either 1996 (identified as receiving a C-Form bearing a reference number which acknowledged receipt of their application) or had applied for housing from 2000 onward and received a Government generated sms or other official notification which also bore a reference number. A further twelve or so claim to be from a special MK Veterans unit but have not produced any reference number to indicate that they are on a housing list. [8]
Secondly, the overwhelming number of persons in the group reside on an erf or stand in a proclaimed township since they identify their address by reference to a street name and number within an established township development. This does not mean that they live in the main house. On the contrary they all appear to claim to only occupy a so-called backyard shack, and this allegation is accepted by the court.
The litigation got bogged down as it was necessary to extend times for filing affidavits and for complying with court orders requiring the identification of household heads and their family members who contended that they fell within the first respondent group.
The first respondent group also counterclaimed that they;
were entitled to the allocation lists and be furnished with the criteria for determining preference.
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were entitled to a spoliation order with return of goods and possessions taken by the Metro when evicting them.
Since the Metro contended that the information sought for the production of the allocation lists and the criteria for determining preference was with the Provincial body, the court was willing to consider granting that part of the counter-application once the Gauteng Government was joined.
Prima facie I was inclined to grant the relief sought because it would reveal whether there had been corruption or maladministration in the allocation of housing as alleged; the information being peculiarly within the knowledge of either or both spheres of Government. However, despite filing a joinder application the first respondent's counsel advised that it would not be pursued and informed the court that they were or had been engaged in discussions with the authorities.
Since I was not prepared to consider directing production if the Gauteng Government was not joined, the only counter-application which remained was based on spoliation and return of possessions allegedly taken by Metro officials or their agents.
In terms of the list finally supplied (annexure "AA1" to the combined answering affidavit [9] ), the first respondent group comprises 880 households of over 1 500 individuals.
Three issues arise for consideration in respect of the application against the first respondent group and their own counter-application:
Whether, at the time when they were allegedly removed by the Metro, the first respondent members were already in occupation on the development so as to qualify for protection under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE"). This issue would
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also include a consideration of the purpose of the occupation.
Whether the group was in peaceful and undisturbed possession of land on the development and...
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