Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Judgment Date: 19 February 2008
• Docket Number: CCT24/07
• Hearing Date: 28 August 2007
• Counsel: PM Kennedy SC (with LH Barnes) for the applicants. JJ Gauntlett SC (with FA Snyckers) for the first respondent. No appearances for the second, third and fourth respondents. GM Budlender (with O Mooki and R Moultrie) for the amici curiae.
• Court: Constitutional Court

Yacoob J:

Introduction B

[1] More than 400 occupiers of two buildings in the inner city of Johannesburg (the occupiers) applied for leave to appeal against a decision of the Supreme Court of Appeal. [1] They challenged the correctness of the judgment and order of that court authorising their eviction at C the instance of the City of Johannesburg (the city) based on the finding that the buildings they occupied were unsafe [2] and unhealthy. [3] The city was ordered to provide those of the occupiers who were 'desperately in need of housing assistance with relocation to a temporary settlement area'. [4] D

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[2] The appeal to the Supreme Court of Appeal was directed by the city A against a judgment and order in the Johannesburg High Court (the High Court). [5] The High Court had before it applications by the city for the ejectment of the occupiers as well as counter-applications by the latter aimed at securing alternative accommodation or housing as a pre-condition to their eviction. The judge in the High Court declared that B the city's housing programme fell short of what was required, ordered the city to produce a programme to cater for those people in desperate need, and interdicted the eviction of the occupiers on certain terms. [6]

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[3] A The broad questions initially raised in the application for leave to appeal were whether the order for the eviction of the occupiers ought to have been granted and whether the city's housing programme complied with the obligations imposed upon it by s 26(3) of the Constitution. [7] I stress that the question in both courts was not limited to whether the city had complied with its housing obligations to the occupiers. They raised, B in the public interest, the broader question whether the city had made reasonable provision for housing for those thousands of people who were said to be living in desperate conditions in the inner city.

[4] Since this case was argued, certain developments have occurred which have had a significant impact on whether any or all of the issues C raised in it should be considered by this court. These details are briefly set out now.

[5] Two days after the application for leave to appeal was heard, this court issued an interim order [8] aimed at ensuring that the city and the occupiers engaged with each other meaningfully on certain issues. That D order was in the following terms -

1.

The City of Johannesburg and the applicants are required to engage with each other meaningfully and as soon as it is possible for them to do so, in an effort to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the E constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned.

2.

The City of Johannesburg and the applicants must also engage with each other in an effort to alleviate the plight of the applicants who live in the two buildings concerned in this application by making the buildings as safe and as conducive to health as is reasonably F practicable.

3.

The City of Johannesburg and the applicants must file affidavits before this court on or before 3 October 2007 reporting on the results of the engagement between the parties as at 27 September 2007.

4.

Account will be taken of the contents of the affidavits in the G preparation of the judgment in this matter for the issuing of further directions, should this become necessary.

We did not furnish reasons for the order and I do so later in this judgment.

[6] After extensions of time were twice sought, [9] the city and the H occupiers filed affidavits in which we were informed that an agreement of

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settlement had been entered into between the city and the occupiers. As A will appear from what is set out later in this judgment, the parties differed in relation to the issues that remained for adjudication by this court consequent upon the conclusion of the agreement. To determine the issues that remain for decision we must first define the issues raised by the application for leave to appeal. This judgment will next set out the B reasons for issuing the engagement order as well as the terms of the agreement entered into consequent upon engagement. I will then investigate the effect of the agreement on those issues. The issues that remain to be decided are those not disposed of in that part of the judgment concerned with the reasons for engagement. Further the remaining issues will call for consideration only if they raise C constitutional issues and if it is in the interests of justice for us to decide them. [10]

Issues raised by this application

[7] The first broad issue raised by the application is whether the D Supreme Court of Appeal was right when it granted an order for the ejectment of all the occupiers. This broad issue encapsulates five questions. None of these was determined in the High Court. They arise out of the defences of the occupiers to the ejectment application. [11] The first of these was that s 12 of the Act is inconsistent with the Constitution E because it provides for arbitrary evictions and evictions without a court order. Second, the occupiers attacked the constitutional validity of the decision by the city to evict them as being unfair because it had been taken without giving them a hearing. The next point taken was that the administrative decision to evict them was not reasonable in all the F circumstances because in particular the city did not take into account that the occupiers would be homeless after the eviction. Fourthly, it was contended that s 26(3) of the Constitution precluded their eviction. [12] The final argument made was that the standards set by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) [13] were applicable to these evictions. The Supreme Court of Appeal G dismissed all these objections and, as already mentioned, granted the eviction orders on the basis that temporary accommodation should be provided to those occupiers who fulfil certain requirements.

[8] The housing issues raised in the counter-applications are whether H the city's housing programme then in operation catered reasonably for

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the A occupiers and whether that programme also catered reasonably for the many thousands of people who lived in desperate conditions within the inner city. The essential question to be asked is whether the High Court was right in making the orders it did. The Supreme Court of Appeal disagreed with the High Court in this regard and made a limited B order for temporary accommodation.

Reasons for the engagement order

[9] The need for meaningful engagement between the city and the occupiers was not directly raised by the parties before this court. It was C however in some sense foreshadowed by their contention that the city was obliged to give the occupiers a hearing before taking the decision to evict on the basis that the decision was an administrative one. [14] The city contended that the occupiers had indeed been given a hearing because they had had an opportunity to file affidavits in the High Court in D opposition to the ejectment application.

[10] In Grootboom [15] this court said, on the relationship between reasonable state action and the need to treat human beings with the appropriate respect and care for their dignity to which they have a right as members of humanity - E

All levels of government must ensure that the housing program is reasonably and appropriately implemented in the light of all the provisions in the Constitution. All implementation mechanisms and all State action in relation to housing falls to be assessed against the requirements of s 26 of the Constitution. Every step at every level of F government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing.

But s 26 is not the only provision relevant to a decision as to whether State action at any particular level of government is reasonable and consistent with the Constitution. The proposition that rights are interrelated and are all equally important is not merely a theoretical G postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of State action concerned with housing is determined without H regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the State in all circumstances and with particular regard to human dignity. In

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short, I emphasise that human beings are required to be treated as A human beings. This is the backdrop against which the conduct of the [State] must be seen. [16]

[11] The court went on to say more specifically about engagement and its importance -

The respondents began to move onto the New Rust land during B September 1998 and the number of people on this land continued to grow relentlessly. I would have expected officials of the municipality responsible for housing to engage with these people as soon as they became aware of the occupation. I would have also thought that some effort would have been made by the municipality to resolve the difficulty on a case-by-case basis after an investigation of their circumstances C before the matter got out of hand. The municipality did nothing and the settlement grew by leaps and bounds. [17]

[12] In Port Elizabeth Municipality [18] this court said -

. . . the procedural and substantive aspects of justice and equity...