Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 10 June 2009
• Citation: 2010 (3) SA 454 (CC)
• Docket Number: CCT 22/2008
• Hearing Date: 21 August 2008
• Counsel: P Hathorn for the applicants represented by the Penze Committee. G Budlender (with him L Kubukeli) for the applicants represented by the Mapasa Task Team. SC Kirk-Cohen SC (with him DB Ntsebeza SC, H Rabkin-Naicker and T Mashuku) for the first and third respondents. M Donen SC (with him K Pillay) for the second respondent. H Barnes (with him N Jele) for the amici curiae.
• Court: Constitutional Court

The court: A

[1] In this case five judgments have been prepared by different members of the court: Moseneke DCJ, Ngcobo J, O'Regan J, Sachs J and Yacoob J. All the judgments support the order set out at the end of this judgment. This judgment has been prepared to outline briefly the basis upon which B all judges agree that the order should be made.

[2] The history of the matter and the relevant facts are set out fully in the judgment of Yacoob J. Crisply, the question the court has to answer is whether the application for leave to appeal against the order of eviction made by the Western Cape High Court, Cape Town, [1] should succeed C and, if so, on what basis.

[3] All the judgments agree that two key legal questions must be answered. The first is whether the first to third respondents have made out a case for eviction of the applicants in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of D 1998 ('the PIE Act' or 'PIE'). Key to the PIE question is whether, at the time the eviction proceedings were launched, the applicants were 'unlawful occupiers' within the meaning of PIE and whether it is just and equitable to issue an eviction order. The second question is whether the respondents have acted reasonably within the meaning of s 26 of the E Constitution [2] in seeking the eviction of the applicants.

[4] All the judgments accept that by the time the eviction proceedings were launched, the applicants were 'unlawful occupiers' within the meaning of PIE, although the reasoning which supports this conclusion differs. The difference between the judgments concerns whether the F applicants had the consent of the municipality to occupy the land in question within the meaning of PIE. In this regard, Yacoob J holds that they did not have consent at all, while Moseneke DCJ, Ngcobo J, O'Regan J and Sachs J conclude that they did but that the consent was conditional and subsequently revoked.

G [5] All the judgments agree, as well, that an eviction order as crafted in the order annexed to this judgment is just and equitable. It should be noted, however, that the terms of the eviction order made by this court

The Court

are different from the terms of the eviction order made by the High A Court. The main differences between the High Court order and the order made by this court are the following. First, this court's order imposes an obligation upon the respondents to ensure that 70 percent of the new homes to be built on the site of the Joe Slovo informal settlement are allocated to those people who are currently resident there or who B were resident there but moved away after the N2 Gateway housing project had been launched. Secondly, this court's order specifies the quality of the temporary accommodation in which the occupiers will be housed after the eviction; and, thirdly, this court's order requires an ongoing process of engagement between the residents and the respondents concerning the relocation process. Accordingly, the High Court C order is set aside and replaced with the order attached.

[6] All the judgments, too, agree that the respondents, and particularly the second and third respondents who bear obligations to act reasonably in seeking to promote the right of access to adequate housing contained in s 26 of the Constitution, have acted reasonably in seeking the eviction D of the applicants in this case. There are differences in emphasis in the reasoning supporting this conclusion.

[7] Accordingly the following order (which is in the terms proposed by Yacoob J) is made unanimously by the court: E

1.

The application for leave to appeal is granted.

2.

The appeal succeeds in part and is dismissed in part.

3.

The order of the Western Cape High Court, Cape Town, dated 10 March 2008 under case No CPD 13189/2007, is set aside.

4.

The applicants are ordered to vacate the Joe Slovo informal settlement (Joe Slovo) in accordance with the timetable set out in F annexure A hereto, subject to any revisions to that timetable agreed to in terms of paras 5 - 7 of this order. The order to vacate is conditional upon and subject to the applicants being relocated to temporary residential units situated at Delft or another appropriate location on the conditions set out in paras 8 - 10 below. G

5.

The applicants and the respondents are ordered, through their respective representatives, to engage meaningfully with each other with a view to reaching agreement on the following issues:

5.1

a date upon which the relocation will commence different to that contemplated H in annexure A;

5.2

a timetable for the relocation process different to that contemplated in annexure A; and

5.3

any other relevant matter upon which they agree to engage.

6.

The process of engagement described in the previous paragraph of this order must be completed by 30 June 2009.

7.

If the process of engagement results in agreement between the I parties, the agreement must be placed before this court by 7 July 2009 for this court to consider whether it is appropriate to issue an order giving effect to the agreement.

8.

The respondents are ordered to provide alternative accommodation in the form of temporary residential units to those applicants who vacate Joe Slovo. J

The Court

9.

A A temporary residential unit must be made available to each household moved, and each temporary residential accommodation unit:

9.1

that already exists, must in all respects comply with the specifications in para 10 of this order; and

9.2

B that is newly constructed, must be of an equivalent or superior quality.

10.

The temporary residential accommodation unit must:

10.1

Be at least 24 m2 in extent;

10.2

be serviced with tarred roads;

10.3

C be individually numbered for purposes of identification;

10.4

have walls constructed with a substance called Nutec;

10.5

have a galvanised iron roof;

10.6

be supplied with electricity through a prepaid electricity meter;

10.7

be situated within reasonable proximity of a communal ablution D facility;

10.8

make reasonable provision (which may be communal) for toilet facilities with water-borne sewerage; and

10.9

make reasonable provision (which may be communal) for fresh water.

11.

E The respondents are further directed to engage with the affected residents in respect of each relocation that is to take place, the engagement to take place at least one week prior to the date specified for the relocation in annexure A or as otherwise specified in an order of this court. The engagement must include (but not be limited to) the following issues:

11.1

F Ascertainment of the names, details and relevant personal circumstances of those who are to be affected by each relocation;

11.2

the exact time, manner and conditions under which the relocation of each affected household will be conducted;

11.3

the precise temporary residential accommodation units to be G allocated to those persons to be relocated;

11.4

the need for transport to be provided to those to be relocated;

11.5

the need for transport of the possessions of those to be relocated;

11.6

the provision of transport facilities to the affected residents H from the temporary residential accommodation units to amenities, including schools, health facilities and places of work;

11.7

the prospect in due course of the allocation of permanent housing to those relocated to temporary residential accommodation I units, including information regarding their current position on the housing waiting list, and the provision of assistance to those relocated with the completion of application forms for housing subsidies.

12.

The first respondent is directed, in accordance with its tender to do so, to render assistance to the parties affected to move their J possessions insofar as it is reasonably practicable.

The Court

13.

The applicants are interdicted, once they have been relocated from A Joe Slovo, from returning to Joe Slovo for the purpose of erecting or taking up residence in informal dwellings.

14.

The applicants are entitled to remove their informal structures when they leave Joe Slovo.

15.

After the informal dwellings at Joe Slovo have been vacated in B accordance with this order, the respondents are authorised to demolish the housing that remains in the areas vacated.

16.

The parties are directed:

16.1

To lodge affidavits with the registrar of this court not later than 1 December 2009 setting out a report on: C

16.1.1

The implementation of this order;

16.1.2

the allocation of permanent housing opportunities to those affected by this order.

16.2

To serve copies of the affidavits on the legal representatives of all the parties.

17.

The respondents are directed to allocate 70 percent of the Breaking D New Ground houses (that is, low-cost government housing available at low rentals) to be built at the site of Joe Slovo to:

17.1

The current residents of Joe Slovo; and

17.2

those former residents of Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was launched after being E requested to do so by the respondents or the City; and who apply for and qualify for this housing.

18.

It is recorded that the respondents have indicated that the total number of Breaking New Ground houses to be built at the site of Joe Slovo will not number fewer than 1500. The respondents are F ordered to inform the other parties and the court within 14 days of this order if this number has changed or is likely to change whereupon the court may issue further directions in this regard.

19.

The second respondent and third respondent are directed to ensure - in accordance with...