Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening)

JurisdictionSouth Africa
JudgeChaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
Judgment Date29 May 2001
Citation2001 (3) SA 1151 (CC)
Docket NumberCCT 55/2000
Hearing Date15 March 2001
CounselC R Jansen for the respondents. G Budlender (attorney) for the interveno
CourtConstitutional Court

Chaskalson P: H

The dispute

[1] Towards the end of the summer of 2000 there were heavy rains in parts of South Africa that led to the flooding of rivers and extensive damage to homes and property. The President appointed a cabinet committee to deal with this and to make arrangements for the I relief of communities affected by the flooding. The committee, known as the Inter-Ministerial Emergency Reconstruction Committee, was given a budget of R557 000 000 to implement this mandate. It established a command centre to deal with the disaster and appointed Ms L N Sisulu, then Deputy Minister of Home Affairs, as the political head of the center J

Chaskalson P

and Mr Colin Matjila as the chief executive officer. Meetings were arranged with the Premiers of the provinces affected by the A flooding to assess the damage and to establish priorities for the relief work.

[2] Alexandra Township, a densely populated township in the Greater Johannesburg Municipal area, was one of the affected areas. The Jukskei River that runs through the township had come down in flood during March 2000 destroying the homes of approximately 300 people B living on the banks of the river below the flood line. Some of the Alexandra flood victims were given shelter by the Rhema Church in one of its halls and others in army tents erected on land owned by the Sandton Municipality in Marlboro. The flood victims were living there in overcrowded and unhealthy circumstances without sufficient water and C sanitation. Huts were later erected on the land in place of the tents, but this did little to improve the conditions in which the flood victims were living.

[3] At a meeting attended by the Premier of Gauteng, the Gauteng MEC for Housing and representatives of the command centre it was agreed D that there was an urgent need to make provision for the accommodation of the Alexandra flood victims and to establish a transit camp for this purpose.

[4] After considering various options a portion of State land on which the Leeuwkop Prison stands was identified as the most suitable site for the transit camp. It is an area of 6,5 hectares on the E northern most part of the farm on which the prison is built, rectangular in shape, and bounded by roads on its northwestern and northeastern sides.

[5] The Department of Correctional Services agreed that the transit camp could be established there. The chief executive officer of F the local authority in whose jurisdiction the land is situated was consulted and offered no objection to the establishment of the transit camp. The Department of Public Works, as manager of State land, consented formally to the transit camp being established, and a contractor was appointed to undertake the necessary work. G

[6] No discussions were, however, held with residents in the vicinity of Leeuwkop. They first learned of the government's plans when a contractor moved onto the prison site and started work. Shortly after this a press conference was held at the site to inform the public of what was to happen. This was on the afternoon of 13 June 2000. Mr Matjila addressed the people who attended the conference, explained H that the plan was to establish a transit camp to house people from Alexandra Township who had been displaced by the floods and that approximately 200 houses, each to accommodate four or five people, were to be built on the site. Mr Paul Mashatile, the Gauteng MEC for Housing, also spoke, stressing that a transit camp was being I established, and that the persons to be accommodated there would move to permanent housing when that became available, and that the transit camp would then be dismantled.

[7] A number of the residents were not satisfied with this explanation. They came together on 21 June and formed a residents' association (I J

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will refer to the group as the Kyalami residents). Attorneys were consulted and a demand was made through them A on 23 June to the Minister of Public Works to suspend operations on the site or face court proceedings for an interdict. The grounds for this demand were that the establishment of the transit camp on the site involved an alteration in the use of the land and was being carried out in contravention of the Environment Conservation Act 73 of 1989 and B the National Environmental Management Act 107 of 1998.

[8] The demand was not complied with and on 29 June the Kyalami residents and an owner of land adjoining Leeuwkop Prison brought an urgent application in the High Court, citing the Minister of Public Works and the contractor as respondents, claiming an interim C interdict restraining the respondents from

(a)

proceeding with the establishment of an informal settlement on the land on which Leeuwkop Prison is situated;

(b)

proceeding with the construction and/or erection of temporary or permanent dwelling units for purposes of the establishment of an informal settlement on the property referred to in (a) D above;

(c)

permitting any persons to come onto the property referred to in (a) above for purposes of settling there (temporarily or permanently) as residents.

The National Government (to which I will refer as the government) and E the Premier of Gauteng were subsequently added as respondents as a result of allegations made in the answering affidavits lodged on behalf of the Minister of Public Works. Although the order does not form part of the record before us, we were informed that the High Court granted an interim interdict in the terms claimed by the Kyalami residents. F

[9] The interim interdict was to remain in force pending the determination of an application in which the two applicants claimed an order setting aside the decision to establish the transit camp on the prison farm, and directing the government to reconsider the decision after consulting the Kyalami residents and taking into account any representations they might make, and after giving due consideration to G the environmental impact of establishing a transit camp there. After hearing argument on the application, the High Court made an order substantially in those terms.

The judgment of the High Court H

[10] In the High Court, the Kyalami residents contended that there was no legislation that authorised the government to take the action it took and that, absent legislation authorising it to do so, the government's decision to establish a transit camp for the flood victims on the prison farm was unlawful. This the government disputed, saying that it had a constitutional obligation to assist the flood I victims, and that as owner of the land it was entitled, and indeed obliged, to make the land available for such purposes. It contended that the only decision that had been taken was to consent to the transit camp being erected on State property. This, so it was alleged, was not an administrative decision; it was a J

Chaskalson P

decision taken by the State as owner of the land, and did 'not require authorisation or A permission by or under any law'.

[11] The Kyalami residents later contended that the decision to establish the transit camp was unlawful because it contravened the relevant town planning scheme and land and environmental legislation, and had been taken without affording a hearing to the residents. The government disputed that it was obliged to afford the residents a B hearing before it took the decision. It also disputed that it had breached the township or environmental legislation relied on by the Kyalami residents.

[12] In support of its case the Government lodged an affidavit by Mr Matjila in which he described the circumstances in which the command centre was established and the decision taken to provide relief C to the victims of the flooding in Alexandra. Mr Matjila averred that the property was zoned under the Peri-Urban Town Planning Scheme for 'undetermined use' which allowed the construction of dwelling houses and agricultural buildings, and that accordingly no permission had to be obtained from the local authority for the erection of houses in a D temporary transit camp. He said that care had been taken to address environmental concerns in the design and planning of the transit camp, that its erection on the land of Leeuwkop Prison would not contravene the provisions of the relevant town planning scheme and environmental E legislation and that, in any event, the legislation did not apply to the establishment of a temporary transit camp.

[13] The judgment of the High Court does not deal with all the issues raised in the application. It proceeds on the assumption, but without deciding, that the legislation relied upon by the Kyalami residents would not have been applicable if government's purpose was F to provide temporary shelter for the Alexandra flood victims. This, however, so the Court held, was not the case. The scheme was not one for temporary shelter. Rather, it was

'[a]t best for [the government] . . . a development for an indefinite period which on the probabilities will be utilised on a permanent ongoing basis, either by the proposed occupants or by the G Government in the future'.

[14] The Judge held that in the circumstances

'. . . the decision . . . [could not] . . . be validly implemented without complying with the various statutes, laws, bye-laws and regulations and it being the [government's] attitude that it is entitled to do so, that decision is clearly wrong and should be set H aside'.

[15] Having come to this conclusion the Judge made an order in these terms:

(a)

That the decision of the Department of Public Works to establish an informal residential settlement on the land on which Leeuwkop Prison is situated, be reviewed and set aside. I

(b)

That the Department be directed to reconsider the decision referred to in (a) above after proper consultation...

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112 practice notes
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