1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER:
(HIGH COURT CASE NO: 12289/2010 NGHC) (SUPREME COURT OF APPEAL CASE NO: SCA 037/2011)
In the matter between:
THE OCCUPIERS OF SKURWEPLAAS 353 JR Applicants
and
PPC AGGREGATE QUARRIES (PTY) LTD First Respondent
THE CITY OF TSHWANE METROPOLITAN
MUNICIPALITY Second Respondent
___________________________________________________________
FOUNDING AFFIDAVIT
APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________
I, the undersigned,
SELLO LUCAS MOGAGANE
hereby make oath and state:
2 THE APPLICANTS – HOMELESS PEOPLE FACING EVICTION
1.
I am an adult male resident of the informal settlement on the Remainder of Skurweplaas 353 JR. As such, I am a person liable to be evicted in terms of the High Court order which I refer to below and which is the subject matter of this application for leave to appeal. The facts herein fall within my personal knowledge unless is otherwise apparent and are both true and correct.
2.
In the High Court, the residents of the informal settlement on the farm Skurweplaas, were cited collectively as the second respondents. The first respondents were referred to as people who “intended invading” Skurweplaas. The interdict obtained against people who were allegedly intending to invade the property was not opposed in the court a quo and does not form part of this application for leave to appeal. The applicants in this application are only those persons physically present on the aforesaid property and who stand to be evicted.
Further on I refer to the applicants herein as “the occupiers”.
3.
Our attorneys of record obtained powers of attorney on behalf of many of the occupants of this property, but not of all of them. I therefore deposed to an affidavit on behalf of all the occupants. I respectfully submit that this is a case where such a procedure was justified as a result of the fact that the eviction application was brought on an urgent basis and it was not practical to consult with each and every occupant and present all their circumstances to the court a quo. Under these circumstances I respectfully submit that all the occupants of the property are properly before this honourable court.
3 THE REPONDENTS – THE LAND OWNER AND THE MUNICIPALITY
4.
The first respondent is PPC AGGREGATE QUARRIES (PTY) LTD, a duly registered and incorporated company which is the owner of the property at issue in this matter, being the Remainder of the farm Skurweplaas 353 JR. I respectively refer to these as “the owner” and
“the property”.
5.
The second respondent is the CITY OF TSHWANE METROPOLITAN MUNICIPALITY. It is the local authority in whose area of authority the property falls. It was cited as third respondent in the court a quo. Initially, the owner sought no relief against the local authority, but after commencement of the application it brought an application against the local authority to file a report in respect of the situation and to state its intentions in respect of the housing needs of the occupiers. The local authority then filed an affidavit to explain its position. Other than this, the Second Respondent was a very reluctant participant and failed to come up with a constructive solution for the problem.
THE JUDGMENT AND ORDER AGAINST WHICH APPLICANTS SEEK LEAVE TO APPEAL
6.
The application in the court a quo was an application by the owner to evict the occupiers from the property in terms of the provisions of the PIE Act (Prevention of Illegal Evictions and Unlawful Occupation of Land Act, 19 of 1998).
4 7.
The facts of this matter are related to the facts and the order made in another case in the court a quo, being case number 3492/2010 (Golden Thread v Occupiers of Portion R25 of Mooiplaas 355 JR). That matter is also the subject matter of an application for leave to appeal to this honourable court and these two applications will be lodged simultaneously.
The relationship between these two matters appear more fully here below. Case 3492/10 will be referred to as the Portion 25 Mooiplaats eviction and this case as the Skurweplaas eviction.
8.
In addition to the Portion 25 Mooiplaats eviction, two other evictions which occurred in the immediate vicinity during the same period are also relevant. The one was an eviction in terms of a court order granted under case number 42254/09 in respect of Portion 15 of Mooiplaats and the other was an illegal eviction on Portion 25 of Mooiplaats 355 JR. Again, details of how these four evictions relate to each other, are dealt with below. The court order in case number 42254/09 is not the subject of any further appeal proceedings, however it is important to this case as it triggered the sequence of senseless evictions, and contained the same flaw as the present order, in that the sheriff is not told where to evict the people to.
9.
The judgment and order of the High Court are annexed hereto as annexures “SLM1” and
“SLM2” respectively. The judgment and order in the application for leave to appeal in the High Court are not attached. A subsequent application for leave to appeal to the Supreme Court of Appeal was dismissed with costs under case no SCA 037/2011. That order dated 14 March 2011 is annexed hereto as “SLM3”
5 BACKGROUND SHOWS THAT THE EVICTION ORDER WILL NOT SOLVE PROBLEM OF UNLAWFUL OCCUPATION, IT WILL ONLY MOVE IT ELSEWHERE
10.
The following background is, with respect, essential in understanding the inherent flaws in the eviction order granted by the High Court. I summarise the main sequence of facts as it appears from the record in the High Court:
10.1. Itireleng is an informal settlement in the municipal area of the second respondent.
It is situated on part of a property described as the Remainder of Portion 18 of the farm Mooiplaats 355 JR. The initial settlement of people in Itireleng took place in the early 1990’s. In 2004 the second respondent expropriated the property.
See: par. 2.2 and 2.3 of Rakgoale affidavit.
10.2. Over the years, Itireleng became more and more overcrowded. To the immediate north is a formalised suburban area namely Laudium Extension 3. To the south is a limestone quarry of the owner. The quarry is surrounded by a blasting buffer zone. Aerial photographs depicting the area is annexed hereto as Annexures
“SLM4” and “SLM5”.
See: par. 20, p. 175 (answering affidavit).
6 10.3. Towards the end of 2009, residents of Itireleng started occupying the properties immediately to its west and its east. To the east is Portion 15, also owned by the owner in this matter. The property to the west of Itireleng is the remainder of Portion 25 of the farm Mooiplaats 355 JR. The owner of this property is Golden Thread Limited, the applicant for eviction in case number 3492/2010.
See: par. 6, p. 172 (answering affidavit);
par. 23, p. 176 (answering affidavit).
10.4. There is a dispute in the matter whether these occupations started in August 2009, or whether they started in December 2009. It is also in dispute whether the occupations happened at the same time in respect of these two adjacent properties. It is respectfully submitted that these disputes are not really relevant to the essence of this matter.
See: par. 25, p. 177 (answering affidavit).
10.5. In October 2009, the first respondent in this matter, being also the owner of Portion 15, brought eviction proceedings in respect of the persons who had occupied Portion 15. The eviction order was granted in December 2009 under case number 42254/09 per Louw J. The eviction order was executed on 11 January 2010.
See: par’s. 13 and 14, p. 15 (founding affidavit).
7 10.6. The occupiers of Portion 15 were not evicted to any specific place. As a result, they simply moved onto Portion 25 where they joined with other occupiers. This was the first eviction in this sequence.
See: par. 17, p. 16 (founding affidavit);
par. 25, p. 177 (answering affidavit).
10.7. Also on 11 January 2010, and continuing on 12 January, the second respondent municipality effected an unlawful eviction in respect of Portion 25.
See: par’s 18 & 19, p. 17 (founding affidavit);
par. 26.1, p. 178 (answering affidavit).
10.8. This eviction took place without any court order of any kind. It also did not entail relocating the occupants of Portion 25 to any specific other place. It simply entailed the agents of the second respondent breaking down the shacks of the occupants and removing their material. This left the occupants of Portion 25 literally living in the open veld. This was the second eviction in this sequence.
10.9. The owner of Portion 25, Golden Thread, then brought eviction proceedings towards the end of January 2010 against all the occupants of Portion 25. The unlawful evictions on Portion 25 as well as the new eviction proceedings that were served on the occupants, caused some of the occupants to move even further west of Portion 25. This piece of land further west of Portion 25 is the Remainder of Skurweplaas 353 JR. The part of Skurweplaas that was invaded is a very small
8 part of the whole portion. It only represents one corner of approximately 5 hectares immediately adjacent to Portion 25 of the farm Mooiplaats. The remainder of Skurweplaas farm is approximately 870 hectares. The Portion 25 Mooiplaats eviction will be the third eviction if executed.
See: case 3492/2010 NGHC.
10.10. As a result of this further occupation, the present owner, also being the owner of Portion 15 of the farm Mooiplaats where the sequence of evictions started, again brought eviction proceedings against the occupants of the property presently at issue. On 2 March 2010 eviction orders were granted against the occupiers of some 300 shacks under case number 3492/10 and on 24 March 2010 eviction orders were granted in this matter as appears from the annexed judgments and orders. The Skurweplaas evictions will be the fourth eviction in the sequence if executed.
GROUNDS ON WHICH LEAVE TO APPEAL IS SOUGHT; ERRORS OF FACT AND LAW MADE BY THE HIGH COURT:
11.
The High Court erred in making an order for eviction which is respectfully constitutionally impermissible. Although the court, in paragraph 3 of the order, did make an order against the local authority to provide alternative land, the eviction order was not made conditional to the compliance with this part of the order.
See: par’s. 3 & 4 of “SLM2”.
9 12.
The court a quo, in paragraph 4 thereof, ordered that the eviction may be effected, even if the second respondent did not comply with the order of court in paragraph 3.
13.
The court did not allow sufficient time for the occupiers to enforce the provisions of paragraph 3. More important, if the local authority can neglect to comply, as they have, in this matter, there is no guarantee that they will comply with an order in similar terms obtained by the occupiers.
14.
There was no evidence before the court relating to what problems there may be in respect of finding alternative land. This is an issue that had to be ventilated before the court could properly make such an order. In the affidavit of the local authority, deponent Rakgoale simply alleges that the municipality cannot do anything at the time, but only in the next financial year.
15.
A further error of the High Court, was to grant an eviction order in circumstances where the owner did not attempt at all to identify alternative land, and where it did not seek any other relief against the local authority, such as expropriation or compensation.
10 16.
In other similar matters where our courts have ordered the eviction of large groups of persons, it has always been a requirement that they be evicted, or more properly stated, relocated, to another specific area. At the very least, occupiers should be granted the opportunity of voluntarily moving to a designated area.
See: Residents of Joe Slovo Community v Thubelisha Homes 2010(3) SA 454 CC at par. 7(4) and (8), p. 459;
Port Elizabeth Municipality v Various Occupiers 2005(1) SA 217 CC at par. 5;
Government of the RSA v Grootboom & Others 2001(1) SA 36 at par. 7 – 11 and 88.
17.
The eviction order was not just and equitable as required by the PIE Act. The owner does not use the piece of land invaded. The piece of land is extremely small considering the large portion of the land owned by the owner. More important, it was the owner that caused the problems by starting eviction proceedings in respect of the occupiers of Portion 15 of the farm Mooiplaats during December 2009.
18.
The eviction order is furthermore not just and equitable as the law does provide for an order that the local authority pay rental to the landowner while alternative land is being identified.
See: President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005(5) SA 3 CC par’s 59 to 65.
11 19.
The High Court also respectfully erred in accepting the evidence of the local authority that the land occupation was organised through “fraud and deceit” by persons charging money to occupants. These allegations, also made by the owner, were denied and there is absolutely no evidence proving this. The probabilities point strongly to the converse. It is also contradicted by the minutes of the meetings held in August 2009 with the occupiers.
See: par. 11 to 14 of “SLM1”.
20.
The High Court also erred in accepting the evidence of the local authority that the occupiers were uncooperative and refused to give their personal details. These allegations are obviously untrue. The local authority was invited on numerous occasions to ascertain personal details of occupiers, and to assist in their housing plight. The local authority promised to do so as far back as September 2009, but did nothing.
21.
The High Court also erred in stating that the local authority’s allegations are supported by the paucity of information supplied by the occupiers. The occupiers were not given any time to present all their personal details. The owner gave them two days in the notice of motion to file their answering papers. As things happened, the representatives of the occupiers saw their attorney for the first time on 5 March 2009 and filed their affidavit on 12 March 2009.
The time only permitted them to file one affidavit dealing with the facts as a whole as best they could.
12 THIS MATTER RAISES CONSTITUTIONAL ISSUES
22.
For the reasons above it is respectfully submitted that the present matter raises important constitutional issues and that it is in the interests of justice that leave to appeal be granted.
Eviction matters always implicate the provisions of section 26(1) to (3) of the constitution.
The eviction of sizeable communities has always been regarded as raising constitutional issues as it did in Grootboom (supra) at par 24 and Modderklip (supra) at par 25.
23.
The application of the PIE act almost always implicates the constitution.
See: Port Elizabeth Municipality (supra) at par 14
THE INTERESTS OF JUSTICE
24.
The court order of the High Court creates a precedent that should with respect not stand.
The order creates a situation where people can be evicted onto the side of the road. And even worse, where court orders for eviction can be effected in a pointless manner, by simply destroying informal structures and leaving the people in the veld. This court should, with respect pronounce on the permissibility of such an order.
13 25.
The problem in this case is caused by rapid urbanisation. Formal housing cannot be granted to all within the foreseeable future. It is therefor inevitable that provision should be made for people to settle informally in a place where they will not be faced by eviction all the time. It is similarly important that this honourable court pronounce on the obligations that local authorities have in this regard. Non-availability of land cannot become a form of influx control.
26.
The applicants’ case has merits. At the very least, the form of the order needs to be scrutinised and it should be considered whether it is consistent with our constitution. Eviction orders should not allow a sheriff to simply “dump” people on the side of the road. People should be assisted to relocate in an orderly fashion.
27.
The context in which Modderklip type orders can and must be made is deserving of more judicial consideration. Such orders in terms of which the state is ordered to pay compensation to the land owner play an important role in protecting both rights to private property, as well as ensuring some stability for homeless people who find themselves unlawfully occupying private property. The facts of this case can contribute to the further development of the law in this regards.
28.
I therefore respectfully request that leave to appeal be granted as requested in the notice of motion.
________________________
DEPONENT
14 Thus signed and sworn to before me at Pretoria on this _______ day of March 2011, the deponent having acknowledged that he/she knows and understands the contents of this affidavit, that it is both true and correct to the best of his/her knowledge and belief, that he/she has no objection to taking the prescribed oath and that the prescribed oath will be binding on his/her conscience.
_________________________
COMMISSIONER OF OATHS
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