CCT: 23/2012 CASE NO. A QUO: 53128/11 NGHC
In the matter between:
SCHUBART PARK RESIDENTS ASSOCIATION First Applicant
ANITA WATKINS Second Applicant
VARIOUS RESIDENTS OF SCHUBART PARK
APARTMENT BLOCKS Third - 1067th Applicants
and
THE CITY OF TSWANE METROPOLITAN
MUNICIPALITY First Respondent
THE MINISTER OF POLICE Second Respondent
FIRST RESPONDENT’S PRACTICE NOTE
Details of parties and case number: The case numbers of both Honourable Court and of the Court a quo, including the details of the parties are as stated in the heading above.
Nature of the proceedings: (a) This is an application for leave to appeal against the whole of the judgment of Judge Prinsloo in the North Gauteng High Court, Pretoria, in the Republic of South Africa,
heard on 22, 23 September 2011 and 3 October 2011, respectively.
(b) On 22 September 2011 Prinsloo J dismissed an application brought by the applicants wherein they sought main relief that the respondents be ordered to allow all residents of the Schubart Park residential complex, in Vermeulen Street, Pretoria, to return to their homes.
(c) The orders granted on 23 September 2011 and 3 October 2011 were mainly an effort by Prinsloo J deal with the homelessness of the applicants and to allow the parties to fashion an appropriate order addressing the issue of alternative temporary accommodation.
(d) The effect of the judgment and orders according to the first respondent were that the applicants had to be evacuated and could not be allowed to return to the Schubart Park residential complex as it was inhabitable and unsafe.
The issues that will be argued: (i) Whether the orders sought by the applicants can be implemented and will have any practical effect or result;
(ii) whether the applicants were evacuated or evicted from the Schubart Park residential complex;
(iii) whether the approach adopted by the High Court was consistent with the provisions
of the section 26 of the Constitution;
(iv) whether the order made by His Lordship Mr Justice Prinsloo afforded appropriate relief, which in a sense, was a relief that was required to protect and enforce the Constitution;
(v) whether it would be appropriate for the Honourable Court as the court of last instance to decide upon issues which were not contended for at the hearing of the application in the High Court;
(vi) whether the new relief sought by the applicants for an order that the first respondent is to reconnect and restore the water and electricity supply at the Schubart Park residential complex is appropriate and achievable.
The relevant portions of the record: The first respondent is also of the opinion that pages 281 to page 688 and other references to the record should only be read to the extent that they are referred to in the first respondent’s heads of argument.
Estimated duration: 6 Hours
Summary of argument: (1) That the application for leave to appeal to the Honourable Court should be dismissed because it is not in the interest of justice that leave should be granted.
(2) That the relief sought by the applicants will have no practical effect or result.
(3) That His Lordship Mr Justice Prinsloo in dismissing the applicants’ application on 21 September 2011 and making open for acceptance the first respondent’s tender, granted appropriate relief.
(4) That the first respondent was to report back to the High Court within three months on the issue of refurbishment, if possible, to determine when and whether the applicants could move back into the buildings.
(5) That the issues before the High Court have not yet been fully exhausted and remain pending.
(6) That the new relief the applicants seek is in fact an order compelling the first respondent to provide them with free water and electricity services in circumstances where it is still in dispute whether the reconnection of the services is achievable due to the flooding in the basements of the buildings and the extensive damages that need to be repaired.
(7) Section 26 (3) of the Constitution does not find application in that the applicants were not evicted in terms of the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act, 19 of 1998.
(8) The applicants were served with a formal section 11(2) notice of the Fire Brigade Services Bylaws of the first respondent’s bylaws, which were issued in terms of section 16(1) of the Fire Brigade Services Act, 99 of 1987.
(9) The first respondent also acted in accordance with Regulation A15 of the National Building Regulations issued in terms of section 17(1) of the National Building Regulations and Building Standards, 103 of 1977.
(10) These aforesaid notices amounted to an instruction and/or directive to evacuate the Schubart Park complex until remedial steps would have been taken. The effect of these notices is that the court is not clothed with the necessary discretion to prevent the evacuation of the applicants from the Schubart Park complex.
(11) The applicants initially consented to their evacuation and it was during this evacuation process that the applicants decided to approach the High Court for an order to be allowed to return to the Schubart Park residential complex.
(12) The orders given by the Court a quo were therefore pursuant to due process, considering the emergency situation and circumstances, which did not require the first respondent to approach the Honourable Court for an order
to enforce statutory requirements.
Main authorities that will be referred
In argument: (a) Pheko and Others v
Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC);
(b) Plascon Evans Paints Ltd v Van Reebeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
(c) National Director of Public Prosecutions v Zuma, Mbeki and Another (intervening) 2009 (2) All SA 243 (SCA);
(d) City of Johannesburg v Rand Properties (Pty) Limited and Others 2007 (6) SA 417 (SCA);
(e) Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC).
DATED AT SANDTON ON THIS THE 3RD
T J B Bokaba SC
DAY OF JULY 2012.
M Mphaga SC
L Uys
