City of Cape Town v Persons who are presently unlawfully occupying Erf 1800, Capricorn: Vrygrond Development and Others [2003] 3 All SA 371 (C)

Right to housing – Application for eviction – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 – Whether section 4 applicable to evictions by State

City of Cape Town v Persons who are presently unlawfully occupying Erf 1800, Capricorn: Vrygrond Development and Others [2003] 3 All SA 371 (C)

Right to housing - Application for eviction - Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 - Whether section 4 applicable to evictions by State

Vrygrond in the Western Cape was used as an informal settlement. In 1997 a decision was taken to develop the land. In 1999, after consultation with various sectors of the community including the South Peninsula Municipality (SPM) and the Vrygrond Community Development Trust (VCDT), approval was given by the Western Cape Provincial government for the upgrading of section 3 of Erf 1800, Capricorn, Vrygrond from an informal settlement into a formal low-cost housing township. It was agreed that houses built first would be allocated to bona fide members of the community already resident on the land at that time. Shortly after the houses were completed, however, certain of the Respondents began to occupy the houses and erven in contravention of the procedures and list of rightful occupants determined by the applicant in terms of the agreement. At the time of the application 105 houses were unlawfully occupied in this manner and formed the subject of this application. The applicants sought an order evicting the occupiers from the 105 houses and providing for the persons who were bona fide occupiers of Vrygrond at the time of the development to be given occupation. The applicants framed their cause of action in terms of both the common law mandament van spolie and section 4 of the Prevention of Illegal Eviction from and unlawful occupation of Land Act 19 of 1998 (PIE).

Erasmus J accepted that, on the facts and for the purposes of this application, the respondents were unlawful occupiers as defined by PIE. The applicants were found to satisfy the requirements in section 4 of both "owner" and "person in charge". The application envisaged by section 4(4) was satisfied on 5 December 2002 and the applicant served the notice of motion in the main application in terms of that order on 5 and 6 December 2002. Notice had been served just before the persons had been in occupation for six months so that the matter fell to be determined in terms of section 4(6).

The respondents argued that it was not open to the applicant to proceed in terms of section 4 as an organ of State ought to proceed in terms of section 6. Erasmus J did not agree. Section 4 applies in proceedings by an owner and the definition of "owner" is defined in the Act as "the registered owner of land including an organ of State." Section 6 exists to allow the organ of State to initiate proceedings even where it is not the owner of the land in question (the court relied for this conclusion on the unreported judgment of Ngwenya J in the CPD in the case of Paarl Municipality v The Occupiers of Houses Situated at Certain Erven, Mbekweni, Paarl case number 8937/2000).

The evidence of the respondents showed that they were poor and disadvantaged. The Court found that the five years the respondents were made to wait for the houses was an unacceptably long period of time and that the temporary accommodation in which they had been placed during the upgrading was intolerable. The respondents have a constitutional right to access to adequate housing in terms of section 26 of the Constitution. The Court was not concerned, however, with evaluating the applicant's fulfillment of its constitutional obligations other than to note that if it were shown that the applicants were failing substantially in the fulfillment of this duty it would weigh in favour of the respondents in a consideration of all the relevant circumstances in this case. The respondents had not argued that the applicants housing policies were inconsistent with its available resources nor was their any evidence which would tend to support such an argument.

The Court held that the applicant had an interest in ensuring that its housing and development programs are implemented in a predictable and fair manner and that it was necessary to draw up a list of potential beneficiaries for housing and then have a cut-off date after which no more applications would be accepted for a particular development. The Court found that the most compelling factor in the applicant's favour was that land invasions must be denounced and rejected as an appropriate of enforcing one's constitutional rights.

In respect of the group of respondents who were clearly entitled to a house and who were in occupation of that house but had not yet complied with certain administrative formalities relating to the occupation procedure, the Court held that it would not be just and equitable to evict those respondents. In respect of respondents who were clearly entitled to a house and who were in occupation of that house but who had not yet had a house formally allocated to them, the Court again held that it would not be just and equitable to evict such persons. Where it was not clear whether the respondents would qualify for a house or not the Court held that it would be just and equitable to evict such persons pending the determination of that qualification, except where the person concerned was a household head and was disabled, elderly or female.

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