Mpumalanga Growth Agency v South African Human Rights Commission and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Roelofse AJ |
| Judgment Date | 18 July 2023 |
| Citation | 2023 JDR 2602 (GJ) |
| Hearing Date | 15 June 2023 |
| Docket Number | 1461/2022 |
| Court | Mpumalanga Division (Main Seat) |
Roelofse AJ:
The applicant is the Mpumalanga Economic Growth Agency (“the agency”). The agency is a statutory body that was established as a juristic person in terms of section 2 of the Mpumalanga Economic Growth Agency Act 4 of 2005 (“the Agency Act”) [1] .
The first respondent is the South African Human Rights Commission (“the commission”). The commission established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996 [2] . It is one of the State institutions aimed at strengthening the constitutional democracy in the Republic. [3]
The functions of the commission are provided for in section 184 of the Constitution. The commission’s composition, functioning and powers are provided for in the South African Human Rights Commission Act 40 of 2013 (‘the SAHRC Act”).
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The commission consists of eight Commissioners. [4] The second respondent a commissioner of the commission.
The third respondent (“Mr. Tembo”) lodged a complaint over the Agency’s conduct with the commission (“the complaint”). This application is about the complaint, the commission’s investigation into the complaint and the commission’s findings and directives set out in the commission’s investigative report pursuant to complaint.
Mr. Tembo complained to the commission that he resided on a property that is owned by the agency and that the agency had orchestrated his eviction “. . .by using a mob to effect the illegal eviction in violation of his [Mr. Tembo’s] right to be evicted from his home without a court order.” [5]
The commission investigated the complaint and issued a final investigative report on 15 November 2021.
A short summary of the facts that lead to the commission’s investigation, directive and findings will suffice.
Mr. Tembo commenced occupying the property on 13 February 2003. At first it was through Mr. Tembo’s former employer and later on, Mr. Tembo remained in occupation of the property, paying rent first to MFHC and then to the agency that
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was MFHC’s successor in title. The rent Mr. Tembo paid never increased from R300 per month over all of those years. During 2012, the agency decided to re-evaluate its immovable properties and to collect market related rent in respect of its housing properties. In 2015, the agency engaged with Mr. Tembo (and other tenants of its properties) and presented a new lease agreement to him. The new lease agreement required Mr. Tembo to pay monthly rent in the amount of R917. According to Mr. Tembo, he refused to sign the new lease agreement on legal advice he received. Mr. Tembo also ceased to pay his monthly rent.
Ms. Msiza and others laid claim to amongst others, the property Mr. Tembo rented, claiming that Mr. Tembo and the other the properties, belonged to their ascendants. It appears that the agency created an impression that the agency would lease Mr. Tembo’s property to Ms. Msiza. On or about 4 May 2018, Ms. Msiza accompanied with a mob of people forcefully evicted Mr. Tembo from the property. Mr. Tembo is now occupying another home which he says is smaller and is also more expensive. Ms. Msiza now resides in the property. She pays no rent.
The commission conducted an investigation as contemplated in section 15 of the SAHRC Act. Section 15 of the SAHRC Act provides for investigations by the commission and the procedure for such investigations. The commissioner considered the parties’ representations and heard the evidence of the parties whereupon the commissioner made findings and also issued certain directives.
The commission found [6] :
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MEGA [the agency] was entitled to make decisions regarding the sale of its properties, at any point it deemed appropriate.
Although there is no evidence that MEGA directly orchestrated and worked with the mop to secure Mr Tembo’s eviction, there is evidence that by offering the property that was already occupied by Mr Tembo to Ms Msiza, MEGA contributed to the events that culminated in the eviction of Mr Tembo through illegal means by Ms. Msiza with the assistance of the mob.
MEGA Also failed in its duty in terms of section 7(2) of the Constitution to promote and protect Mr Tembo’s right to housing, including his right not to be evicted without a court order.
No evidence has been brought to bear to substantiate the claim that Mr Tembo’s eviction was based on his nationality, and the finding is therefore made on this leg of the complaint to the Commission [.]’
The commission issued the following directives:
Within 90 (ninety) days of this report, MEGA to secure alternative accommodation for Mr Tembo of the same standard and value as the property from which he was illegally evicted.
Should MEGA not have any available properties within that period, within a further 90 days from the expiry of the initial 90 (ninety) days, MEGA is to institute legal action against Ms Msiza to restore Mr Tembo’s occupation of the property previously occupied by him.
In providing accommodation to Mr Tembo as directed in paragraphs 12.1.1 and 12.1.2 above, MEGA is entitled to impose any reasonable conditions for such accommodation, including the payment of market- related rent. In determining the rental amount, Mr Tembo should be treated fairly and on terms consistent with those applicable to similarly placed tenants.
In the interim (until after alternative accommodation is found or his occupation of the old property is restored), MEGA should subsidise Mr.
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Tembo’s current rental payments, taking into account the value of the rental amount Mr Tembo would have been required to pay if he was still in occupation of the property. To be sure, the subsidy payable (if any), would be the difference between Mr Tembo’s current rental amount and the amount that Mr Tembo would have been required to pay if he was still in occupation of the property. Payment of such subsidy must be made directly to Mr Tembo and backdated to the end of April 2021. Mr Tembo to provide the banking details where the subsidy should be paid in within 7 [sic] of this report. It must be emphasised, however, that this directive has no bearing on Mr Tembo’s relationship with his landlord and that therefore, Mr Tembo shall remain liable for the full payment of his rent to his landlord, regardless of whether MEGA pays him the rental subsidy or not. Mr. Tembo shall have recourse against MEGA in due course for any unpaid subsidy amounts.’
The agency seeks the following relief in its notice of motion:
Reviewing and setting aside the findings made and directives issued by the second respondent [the commissioner] under the auspices of the first respondent [the commission] under file reference number [. . .], dated 15 November 2021.
Substituting the impugned finding with a finding that “the respondent did not play any role in the eviction of the applicant [the agency] from the property situated at [. . .]”.
In the alternative to prayer 2 above, remitting the matter to the first respondent for consideration by another Commissioner other than the second respondent.
. . . .”
The agency also seeks costs from those respondents who oppose the application.
All of the respondents oppose the application. An affidavit purporting to be
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the Respondents’ [7] answering was filed and delivered. The commissioner deposed to the answering affidavit. The commissioner states that the SAHRC acts on behalf of Mr. Tembo. Mr. Tembo did not file an answering affidavit or any other affidavit.
The agency raised six grounds of review, all premised upon the provisions of the Promotion of...
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