City of Cape Town v Neville Rudolph and Others 2003 (11) BCLR 1236 (C)

City of Cape Town v Neville Rudolph and Others 2003 (11) BCLR 1236 (C).

Evictions- the constitutionality of the Prevention of Illegal Squatting and Unlawful Occupation of Land Act 59 of 1998 (PIE). Housing rights- the right of access to adequate housing.

Facts and Legal Arguments

This case centres on the occupation of land belonging to the applicant, the Metropolitan Municipality of the City of Cape Town. The respondents in these eviction proceedings were all residents of Valhalla Park, an area within the jurisdiction of the applicant. Some respondents had been placed on the housing waiting list of the applicant as far back as ten years ago. As a result of the over-crowded, intolerable conditions under which they were living under at the time, they decided to move onto vacant land that was owned by the applicant. The applicant subsequently applied to the High Court for an order of eviction against them.

The applicant contended that PIE did not apply to the respondents actions. They argued that as the respondents actions could be described as a 'typical case of land grabbing', the provisions of PIE could not be applicable in this case. They therefore sought relief from the court in terms of the common law. In the event that the Court found PIE to be applicable, they then sought urgent relief in terms of section 5 (2) of PIE for the immediate eviction of the respondents. In the alternative, the applicant submitted that PIE is unconstitutional as it condones the practice of 'land grabbing' by failing to adequately define the concept of an 'unlawful occupier'. They argued that if the provisions of PIE extend protection to unlawful occupiers 'who invade the land and/or buildings of an owner forcibly or stealthily without the owners' consent and knowledge', thereby denying the property rights of the owner', it would be unconstitutional 'to the extent that it would allow such a result'.

The respondents not only opposed the application, but also brought a counter application on the basis that the applicants' housing policies and programmes had failed to fulfill its constitutional and statutory obligations to give effect to their right of access to adequate housing in section 26 of the Constitution. In particular, they argued that the applicant had failed to give effect to the judgment of Government of the Republic of South Africa v Grootboom and Others 2000 (11) BCLR 1169 (CC).

The Decision on the Main Application (for Eviction)

1. The Court held that PIE was applicable to the eviction proceedings. Furthermore, it concurred that the definition of 'unlawful occupiers' includes 'squatters' as well as 'illegal land grabbers' as discussed in the case of Ndlovu v Ngcobo; Bekker and Another v Jika [2003] (1) SA 113 (SCA).
2. As to the contention of the applicant that common law remedies were also available to them, the Court held that it would have the effect of 'undermining the over-all purpose of PIE particularly the purpose of the protections provided for therein.'
3. In respect of the urgent relief sought by the applicant in terms of section (5) of PIE, the Court held that taking into account the cumulative factors stipulated in PIE, the applicant had not satisfied the Court that it met the requirements for such an application. The Court held that 'the legislature did not intend that occupiers would be lightly deprived of the protection against arbitrary evictions'.
4. The Court also held that the provisions of PIE are not unconstitutional, but have their roots in the Bill of Rights, particularly section 26(3) which prohibits arbitrary evictions. Furthermore the procedural safeguards provided for in PIE do not amount to an 'arbitrary' deprivation of property. The Court clarified the fact that when an eviction application is refused, it is not PIE that deprives owners' of the use of their land, but an independent court, exercising judicial discretion. The Court also held that PIE does not expropriate property rights it only aims to regulate the exercise thereof.

The Court therefore dismissed the main application.

Decision in respect of the Counter-Application:

1. In respect of the counter application of the respondents, the Court found that the applicant had failed to provide any short-term programmes that could meet the housing needs of the residents of Valhalla Park. The respondents made reference to the fact that the only criteria which the applicant takes into consideration in the allocation of housing, is the length of time an applicant has been waiting on the housing lists, which in itself does not provide any guarantee of being allocated a house timeously.
2. The court in evaluating the desperate housing situation that currently exists within the Cape Town Metropolitan Municipality jurisdiction, acknowledged that in spite of the Grootboom judgment the housing situation had deteriorated. In the Grootboom judgment the Constitutional Court referred to the Accelerated Managed Land Settlement Programme, as an example of the type of programme that would provide relief to those in desperate need. No such programme had yet been put in place. The applicants had therefore failed to progressively realise the rights of access to adequate housing, as stipulated in the Grootboom judgment.
3. The Court therefore held that in light of the standards set in Grootboom, the housing policies of the City of Cape Town had failed to fulfill its constitutional and statutory obligations.
4. The Court accordingly ordered the City of Cape Town to comply with these obligations and produce a report within 4 months, detailing what steps it has taken to ameliorate the situation, and what future policies and programmes would be put in place to this end.

For further information on this case, please see the case review by Ashraf Mahomed, 'Grootboom and its impact on evictions: Neville Rudolph and others v City of Cape Town' in the ESR Review Vol 4 No 3 September 2003, 2