City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 01 December 2011
• Citation: 2012 (2) SA 104 (CC)
• Docket Number: CCT 37/11 [2011] ZACC 33
• Hearing Date: 11 August 2011
• Counsel: J Gauntlett SC (with F Pelser) for the applicant. M Brassey SC (with G Fourie) for the first respondent. P Kennedy SC (with H Barnes and S Wilson) for the second respondent. A Gabriel SC (with B Bedderson) for the amicus curiae.
• Court: Constitutional Court

Van der Westhuizen J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring):

Introduction F

[1] This matter concerns the fate of 86 people (Occupiers), who are poor and unlawfully occupy a property called 'Saratoga Avenue' in Berea in the City of Johannesburg (property). The property comprises old and G dilapidated commercial premises with office space, a factory building and garages. The case deals with the rights of the owner of the property, Blue Moonlight Properties 39 (Pty) Ltd (Blue Moonlight) and with the obligation of the City of Johannesburg Metropolitan Municipality (City) to provide housing for the Occupiers if they are evicted. Ultimately we H must decide whether the eviction of the Occupiers is just and equitable.

[2] Seventeen years into our democracy, a dignified existence for all in South Africa has not yet been achieved. The quest for a roof over one's head often lies at the heart of our constitutional, legal, political and economic discourse on how to bring about social justice within a stable I constitutional democracy. In view of prevailing socio-economic conditions, this is understandable. An estimated 423 249 households in Johannesburg alone are, for example, without adequate housing. [1]

Van der Westhuizen J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

Approximately 1,8 million households in the country were living in A informal housing by 2001. [2] The present number may be higher.

[3] The practical questions to be answered in this case are whether the Occupiers must be evicted to allow the owner to fully exercise its rights regarding its property and, if so, whether their eviction must be linked to an order that the City provide them with accommodation. The City's B position is that it is neither obliged nor able to provide accommodation in these circumstances. The owner wishes to exercise its right to develop its property and wants no part in the dispute about the City's responsibilities or the plight of the Occupiers. And the Occupiers do not want to end up homeless on the street. All parties rely on the Constitution, C statutory law giving effect to the Constitution and judgments of this court.

[4] The City applies for leave to appeal against a judgment of the Supreme Court of Appeal. [3] That court dismissed an appeal against a judgment of the South Gauteng High Court, Johannesburg [4] D (High Court). Blue Moonlight and the Occupiers are the respondents. The Occupiers also apply for leave to cross-appeal, should leave to appeal be granted to the City. Lawyers for Human Rights, a South African non-profit organisation that provides free legal services, was admitted as a friend of the court (amicus curiae).

[5] This judgment first provides some background on the factual and E litigation history of this matter. Thereafter an overview of the applicable constitutional, legal and policy framework is given. Then an analysis based on the findings of the Supreme Court of Appeal and the submissions of the parties to this court follows. The interpretation of F Chapter 12 of the National Housing Code [5] (Chapter 12) and the constitutionality of the City's housing policy as set out in its 2010 Housing Report (Housing Report) are at the heart of the matter. [6] The question of the resources available to the City has also been raised. This case does not deal directly with a programme, or measures, to realise progressively the right of access to adequate housing. [7] But the City's G obligations with regard to this right and the implications of the constitutional protection against arbitrary deprivation of property [8] are of

Van der Westhuizen J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A overall import to the questions of eviction and provision of temporary accommodation for emergency reasons. Finally, a conclusion is reached and a remedy fashioned.

Factual and litigation background B

[6] The Occupiers comprise 81 adults and five children. [9] One child is a person with disability, two adults are pensioners and a number of the households are headed by women. The average income per household is R940 per month. Many of the Occupiers send a portion of their income to family members in other parts of the country. Most of them do not C have formal employment and make their living in the informal sector in the central business district. The location of the building is crucial to the Occupiers' income. The majority of them say that they would not be able to afford the transport costs necessitated by living elsewhere. The Occupiers, relying on expert evidence, also state that if they were to be evicted, they would have to sleep on the street as they would not be able D to find affordable accommodation.

[7] All the Occupiers have resided at the property for more than six months; several of them have lived there for many years. One had resided there since 1976, but passed away during these proceedings; another has resided at the property since 1990. It is common cause that their E occupation is unlawful. It was once lawful though. They lived on the property with the permission of a company which operated from the property until 1999; they then paid rent to a caretaker who ostensibly acted on behalf of the owner until 2000; and they subsequently paid rent to two different property letting firms until 2004.

F [8] In 2004 Blue Moonlight purchased the property with the hope of redeveloping it. The Occupiers allege that they paid rent to an individual and into two bank accounts until the end of 2005, but Blue Moonlight contends that it never received payments.

[9] The condition of the property has deteriorated over the years. In G 2000 and 2002 — while their occupation was presumably still lawful — the Occupiers laid two complaints with the Housing Tribunal, but nothing came of them. In 2005 the City issued two notices warning Blue Moonlight to remedy the fire safety and the health and sanitation conditions on the property. It is not disputed that the current conditions H are abysmal.

[10] On 28 June 2005 Blue Moonlight posted a notice to vacate the property by 31 July 2005. This notice also purported to cancel any lease

Van der Westhuizen J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

that may have existed. Another notice, to the same effect, was posted on A 6 January 2006 with a deadline of 5 February 2006.

[11] On 25 May 2006 Blue Moonlight commenced eviction proceedings in the High Court under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [10] (PIE). The Occupiers opposed the B eviction on the basis that they would be rendered homeless. They applied to join the City to the proceedings by reason of its constitutional and statutory duties in relation to housing. The City did not oppose and was joined by an order of the High Court dated 23 October 2007.

[12] On 4 February 2010 the High Court ordered eviction by 31 March 2010. C The City was ordered to pay Blue Moonlight an amount equivalent to fair and reasonable monthly rental from 1 July 2009 until the eviction date. The court found the City's housing policy unconstitutional to the extent that it discriminates against people in desperate need of housing who are subject to eviction from land by private landowners. The City was ordered to remedy this defect and to report under oath to D the court by 12 March 2010 the steps taken to do so. The City was further ordered to provide the Occupiers with temporary accommodation, or to pay R850 per month to each Occupier or household head until the outcome of the structural interdict was finally determined.

[13] Before the Supreme Court of Appeal the City successfully applied E for the admission of new evidence in the form of the updated Housing Report, because of the time lapsed since the High Court proceedings. On 30 March 2011 the Supreme Court of Appeal set aside the High Court's structural interdict. The compensation order awarded in favour of Blue Moonlight was also set aside. [11] The Supreme Court of Appeal F upheld the eviction order and ordered the Occupiers to vacate the premises by 1 June 2011. It declared the City's housing policy unconstitutional to the extent that it excluded the Occupiers from consideration for temporary housing. It also required the City to provide the Occupiers with 'temporary emergency accommodation'. G

[14] In this court the City applies for leave to appeal against those parts of the Supreme Court of Appeal's order that declared its housing policy unconstitutional and ordered it to provide accommodation to the Occupiers. The Occupiers oppose the City's application for leave to appeal. They also apply for conditional leave to cross-appeal, seeking H

Van der Westhuizen J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A that any order of eviction be linked to the provision of suitable alternative accommodation by the City and that a structural interdict be granted against the City to ensure that it takes appropriate steps to remedy its housing policy. Blue Moonlight filed a notice to abide, but made submissions to this court relating to its rights in relation to the property.

Leave to appeal B

[15] The applications for leave to appeal and to cross-appeal raise constitutional issues relating to the interpretation of PIE, the constitutionality of the City's policy and the roles of the various spheres of C government in proceedings regarding evictions and housing. The appeal and cross-appeal bear reasonable prospects of success. It is in the interests of...