Occupiers of Mooiplaats v Golden Thread Ltd and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 07 December 2011
• Citation: 2012 (2) SA 337 (CC)
• Docket Number: CCT 25/11 [2011] ZACC 35
• Hearing Date: 13 September 2011
• Counsel: R Jansen (with H Barnes) for the applicants. JJ Botha for the second respondent. N Cassim SC (with J Kanyane) for the third respondent. T Motau SC (with K Pillay) for the fourth respondent.
• Court: Constitutional Court

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

Introduction

[1] The applicants are about 170 families who unlawfully occupy certain H land [1] (land) within the City of Tshwane Metropolitan Municipality (City) owned by the first respondent [2] (Golden Thread). They seek leave to appeal against the judgment of the North Gauteng High Court [3] which ordered their eviction. Broadly, the applicants contest the correctness of the conclusion of the High Court that the eviction order was just and

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

equitable within the meaning of s 4(6) of the PIE Act. [4] We can evaluate A this conclusion only if we grant leave to appeal.

[2] The City was joined before the High Court and has also made submissions to this court. The Member of the Executive Council for Local Government and Housing, Gauteng (MEC), and the Minister for B Human Settlements (Minister) were joined as respondents in and at the instance of this court. Affidavits filed on behalf of the Minister and the MEC took the same stance. Written argument was filed on behalf of the MEC alone.

Leave to appeal C

[3] This court may grant leave to appeal only if the case raises constitutional issues and only if it is in the interests of justice to do so. The application for leave to appeal to the Supreme Court of Appeal was dismissed both by the High Court and the Supreme Court of Appeal. The PIE Act was passed to give effect to s 26(3) of the Constitution [5] with D the result that its interpretation and application raise a constitutional matter. In addition, it is in the interests of justice to grant leave to appeal for two inter-related reasons: there are prospects of success and the homelessness of a large number of families is at stake. The only issue before us is whether the High Court was correct that the eviction of these families was just and equitable. This is an important issue. Leave to appeal will be granted. E

Inappropriate citation

[4] It is necessary, before addressing the issue at the crux of this case, to refer to a matter that is cause for considerable concern. Golden Thread F cited two groups of respondents before the High Court. The applicants before us were the second group of respondents before the High Court. The first two respondents joined in the case before the High Court were cited, respectively, as '(t)he people who intend invading Portion 25 of the Farm Mooiplaats 355/JR, Tshwane, Gauteng' and '(t)he people who G invaded Portion 25 of the Farm Mooiplaats 355/JR, Tshwane, Gauteng'. [6] This description of human beings is less than satisfactory and cannot pass without comment. It detracts from the humanity of the

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

A occupiers, is emotive and judgmental and comes close to criminalising the occupiers. This form of citation should not be resorted to. A more neutral appellation like 'occupiers' might well be more appropriate.

In the High Court

B [5] The relevant sections of the PIE Act are set out before looking at the High Court's reasoning:

'4 Eviction of unlawful occupiers

. . .

(6) If an unlawful occupier has occupied the land in question for less C than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

(7) If an unlawful occupier has occupied the land in question for D more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably E be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the F unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine —

(a)

a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

(b)

the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).'

G [6] It must be pointed out now that the High Court rightly expressed misgivings about the conduct of the City during the proceedings:

'I have already noted during the hearing that the [City] is conspicuous in its absence. It is a very sad state of affairs, especially as the [City] is the one body which is constitutionally bound to address the problem H which exists. They have not only failed dismally in that respect and have done so for many years, but they have not even attended this hearing to assist the court to come to a decision. The [City] merely briefed counsel on a watching brief.' [7]

[7] The High Court appreciated that the pertinent enquiry was whether I the eviction was just and equitable and if so, it would have to concern itself with determining a just and equitable date of eviction. The High Court sketched certain surrounding circumstances before proceeding with the justice-and-equity enquiry:

Yacoob J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J...