Pheko and Others v Ekurhuleni Metropolitan Municipality

• 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: 06 December 2011
• Citation: 2012 (2) SA 598 (CC)
• Docket Number: CCT 19/11 [2011] ZACC 34
• Hearing Date: 15 September 2011
• Counsel: R Jansen (with M Dewrance and I Oschman) for the applicants. IV Maleka SC (with K Mnyandu and N Mji) for the respondent. S Wilson (with I de Vos) for the amicus curiae.
• Court: Constitutional Court

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

Introduction

[1] The State recognises the distress occasioned by natural disasters that pose a threat to life, health and safety or result in forced removals from disaster-stricken areas. To address these emergency situations, it has J

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

A enacted the Disaster Management Act [1] (DMA) and introduced remedial measures through certain programmes to provide temporary assistance. [2]

[2] The applicants seek leave to appeal directly to this court. They challenge the correctness of the decision of the North Gauteng High Court, Pretoria [3] (High Court), dismissing their application for certain B relief and holding that the forcible relocation and demolition of their homes, consequent upon a decision to declare an informal settlement a 'disaster area', was lawful.

[3] Neither the decision to declare the informal settlement a 'disaster area' nor the constitutionality of the provisions of the DMA is in C question. Primarily, this application for leave to appeal turns on the lawfulness of the removal of the applicants and the demolition of their homes. More pointedly, it requires us to determine whether the circumstances of this case warranted forcible removal and demolition without an order of court.

D [4] The applicants, the former residents of the Bapsfontein Informal Settlement (Bapsfontein), are currently with no secure tenure and only temporary housing. The respondent is the Ekurhuleni Metropolitan Municipality (Municipality) in whose municipal area Bapsfontein is situated. The Municipality authorised the relocation of the residents of Bapsfontein including the applicants and the demolition of their homes. E The Socio-Economic Rights Institute of South Africa [4] (SERI), whose written submissions have been most helpful and for which we are grateful, was admitted as an amicus curiae.

Factual background

F [5] Bapsfontein covers 25 hectares of privately owned land. In January 2004 the Municipality received information regarding the development of sinkholes in the area. The Municipality then commissioned civil engineers [5] to conduct an investigation. Their report (J & W's first report) was sent to the Municipality in June 2005. This report identified the development of sinkholes in the vicinity of Bapsfontein. It recommended that a further study of the area be conducted.

G [6] Further investigation by the same consultants was commissioned and their report (J & W's second report), dated September 2005, was

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

submitted to the Municipality in November 2005. This report confirmed A the prior findings following the investigation in 2004. It identified unstable dolomite formation as the cause of sinkholes 'to a surfaced road near Bapsfontein'. The Municipality was advised that the depression with its perimeter sinkholes is about 100 m from the primary school in Bapsfontein. In particular, observations of the occurrence of various B sporadic sinkholes, depressions and cracks within the settlement were made. It found that the area around Bapsfontein is unstable and recommended that the area 'should be avoided for mass housing'.

[7] Following J & W's second report, the Municipality relocated approximately 150 families from Bapsfontein during 2005. However, C new occupiers subsequently erected shelters in the area. In 2009, consulting geologists VGI Consult Projects (Pty) Ltd, were commissioned to conduct a further study on the area. Their report (VGI report), delivered to the Municipality on 8 December 2009, makes findings similar to those made earlier. It recommended that the residents 'be evacuated and relocated to an area at least 3 km to the north-east of D [Bapsfontein]'. [6]

[8] In July 2010 the Municipality's Roads and Transport Portfolio Committee recommended that the Bapsfontein Community be relocated. This recommendation was adopted by the Mayoral committee on 18 August 2010. On 10 December 2010 the Municipality issued a E notice [7] declaring Bapsfontein 'a local state of disaster' due to the dolomite instability of the area in terms of s 55(1) of the DMA. [8]

[9] It emerged from a letter dated 13 January 2011 addressed to the Municipality on behalf of the applicants that the latter were 'faced with F

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

A a forced eviction' on that date. The letter reveals also that three meetings were convened by the officials of the Municipality on 14, 16 and 23 December 2010 at which the applicants were informed about the impending relocation scheduled to take place on 27 December 2010. The letter advised the Municipality that the relocation 'amounts to an B eviction' and that '(e)viction without a court order is unlawful'. The Municipality was asked to produce an eviction order or to promise that it would not continue with the eviction. The applicants threatened to apply to court on an urgent basis for an interdict if their demands were not met by noon on the same day. [9]

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

[10] On 17 January 2011 the Municipality advised that: (a) the relocation A of the applicants to N12 Highway Park [10] was temporary; (b) it had consulted meaningfully with the applicants; (c) the Municipality drafted letters of consent and provided each resident with the letter to consent to temporary relocation; (d) buses had been provided for schoolchildren; and (e) basic services were already in place where the applicants were to be relocated. The Municipality denied that the applicants had been B forcibly relocated and maintained that no eviction order was required.

[11] On 17 February 2011 a directive in terms of s 55(2)(d) of the DMA was issued. It advised the applicants that Bapsfontein had been declared a local state of disaster due to dolomite instability, and that all residents C in the area be evacuated to temporary shelter for the preservation of life. The directive also anticipated resistance to the relocation by warning that '(p)ersons refusing to be relocated temporarily will be relocated by the authority of this directive in terms of s 55 of the [DMA]'. [11] Because of the resistance to the relocation, the Municipality enlisted the services of the 'Red Ants' [12] to demolish the homes of the applicants on 5 March 2011. D On the same day the applicants applied to the High Court for urgent interdictory relief.

In the High Court

[12] The applicants sought urgent relief restraining the Municipality E from demolishing their homes, thus rendering them homeless, and from unlawfully evicting and intimidating them to vacate Bapsfontein. They asked the court to order the Municipality to provide them with alternative accommodation and to pay the costs of the application. [13]

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

A [13] The applicants contended that they were being unlawfully and forcibly evicted from their homes and that their homes were being demolished. The forcible eviction and demolition of their homes without an order of court, they argued, not only violated their constitutional rights in relation to housing [14] but also their right to have their dignity B respected and protected. [15] The applicants also contended that the conduct of the Municipality was not in line with PIE. Also, they argued that they were intimidated by the 'Red Ants', hence their urgent interdictory application.

[14] The Municipality disputed these contentions arguing that it 'evacuated' C the residents pursuant to the area being declared a local state of disaster and thus posing a threat to human life. The relocation, the Municipality argued, was authorised in terms of s 55 of the DMA for the preservation of life.

D [15] The High Court, per Makgoba J, dismissed the application with costs. It held that the application lacked urgency and that PIE was not applicable. In justifying the lawfulness of the forced removal the court likened the situation in Bapsfontein to a situation of a person burning in a fire and refusing to be rescued. The court held that it had 'a duty to protect their life' and could not 'let them stay in a danger zone where they can be swallowed by the earth as it is'. [16] Having been refused leave to appeal, the applicants applied for leave E to appeal directly to this court.

In this court

[16] The applicants ask that we: (a) grant them leave to appeal directly to this court; (b) condone the late filing of the High Court judgment and F their written submissions; (c) disregard the evidentiary material annexed to the opposing papers and make a special adverse costs order against the Municipality; and (d) order that the costs of this application be costs in the appeal. Additionally, they seek the following order:

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

'5.

Setting aside the order of the High Court granted on 11 March 2011 A under case number 5394/2011 and replacing it with the following order:

5.1

That the Respondent be interdicted from evicting the Applicants and their dependants from the Bapsfontein Informal Settlement.

5.2

That the Respondent be interdicted from demolishing the B Applicants' shelters and from destroying the Applicants' property.

5.3

Declaring that the eviction of...