"The North West Housing Corporation is attending to the transfer of ownership of all the Tlhabane Unit 1 Township stands"
IN THE NORTH WEST HIGH COURT, MAFIKENG CASE NO: 1413/2009 In the matter between:- PONTSHO DOREEN MOTSWAGAE First Applicant THE PERSONS ON ANNEXURE “A” Second Applicant and THE RUSTENBURG LOCAL MUNICIPALITY First Respondent PROMPTIQUE TR 9 CC Second Respondent CIVIL MATTER DATE OF HEARING : 11 AUGUST 2011 DATE OF JUDGMENT : 15 SEPTEMBER 2011 COUNSEL FOR THE APPLICANTS : ADV VAN NIEWENHUIZEN COUNSEL FOR THE RESPONDENTS: ADV PUTTER JUDGMENT 1 HENDRICKS J [A] Introduction:-  In this matter, the Applicants seeks the following relief on what started off as an urgent application on 11 June 2009:- “2. That the respondents be prohibited from unlawfully disturbing and/or interfering with the applicants’ peaceful possession of their properties listed in Annexure A attached hereto, and more specifically be prohibited: 2.1 from entering upon the properties of the applicants; 2.2 demolishing the structures on the properties; and 2.3 from threatening the applicants in any way whatsoever. 3. That the first respondent be ordered to pay the costs of the application.”  The First Respondent by way of counter-application seeks an order restraining the Applicants from obstructing the contractor in the execution of a service level agreement and has tendered alternative accommodation to the Applicants. The First Respondent relies on the answering affidavit for this relief. No opposition has been shown to the counter-application and no 2 replying affidavit has been filed in the main application. After listening to argument on 11 August 2011, judgment was reserved. [B] Factual Background:-  The First Respondent is a local municipality. As such, it has a constitutional obligation towards the community members in its area to provide inter alia services in a sustainable manner, to promote social and economical developments and encourage community involvement in matters of local government.  In compliance of the aforegoing constitutional obligations the First Respondent must fulfil its objectives mentioned in the preamble of the Constitution to improve the quality of life of all citizens and free the potential of each person and it must respect, protect, promote and fulfil the rights of the Bill of Rights.  The Tlhabane Hostel dwellings which form the basis of this application are erected on the land of the North West Provincial Government, on several stands in the Tlhabane Unit 1 Township. The First Respondent takes part in the National Housing Project together with the Provincial Authorities. The North West Province made the land available to the First Respondent for its housing project. The North West Housing Corporation is attending to the transfer of ownership of all the Tlhabane Unit 1 Township stands.  In light of the aforegoing obligations of the First Respondent, it was contended by the First Respondent never it’s strategy in its housing program to render the inhabitants of the Tlhabane Hostel 3 homeless. The First Respondent endeavoured through a protracted public participation process since 2005 to engage with the inhabitants of the Tlhabane Hostel in a meaningful manner in order to redevelop the Tlhabane Hostel to the benefit of all the interested parties.  The Tlhabane Hostel Redevelopment Program forms part of the First Respondent’s Integrated Development Plan (the IDP).  At all relevant stages the First Respondent was alive to the fact that the redevelopment of the Tlhabane Hostel would result in a temporary resettlement of families or to provide alternative accommodation to them, which responsibility the First Respondent accepted.  A survey was conducted during March 2009 of all the residents occupying the buildings on the stands that form the basis of this application. The survey indicates the current occupants as registered residents and the number of shacks erected on the specific stands. Only seven of the Applicants are reflected in the survey as occupants. The remaining Applicants were not occupants during March 2009 when the survey was conducted.  The buildings on these stands were erected during the 1970’s. Although some of the Applicants occupy these buildings, the North West Provincial Government remains the registered owner of these properties subject to the transfer thereof to the First Respondent. 4  The Second Respondent was contractually appointed to redevelop the Tlhabane Hostel stands. The Applicants are currently occupying the said dwellings without any contractual basis therefore. The survey conducted revealed that several occupants sub-let these properties to third parties who live in desperate circumstances which are unsafe and do not comply with health and building requirements.  The First Respondent’s Health Department and Building Control Department inspected the Tlhabane hostels, which inspections were recorded in reports. The health report of the Tlhabane hostels records the following in respect of the houses:- the houses are in a dilapidated state; two different households share limited space and entrances; the living conditions pose a health hazard and threat; there is not sufficient cross ventilation which creates a risk for transmission of communicable diseases; there is no privacy for the inhabitants due to the limited space and children living in the facilities are not conducive to raise a healthy and functional family. 5  The Building Control Department’s report concluded that:- the houses are severely damaged; the houses can collapse at any time and are unsafe for residential purposes; the houses are 36 square meters and are divided with walls which consist of one bedroom and kitchen which also serves as living quarters. There is only one window and the bedroom facility has no window. According to the National Building Regulations a bedroom should be 6 square meters for habitable space and these facilities do not meet the minimum requirements; the foundation walls are not firmly attached and the structures are unsafe and have visible structural defects; the dwelling units should be demolished.  The Rustenburg area is a fast-growing urban area surrounded by large mines in the immediate vicinity of the town. The demand for low-cost housing and the demand to deliver housing to its communities is one of the First Respondents’ priorities and obligations. The shortage of land to accommodate so-called RDP housing and the principle of densification motivated the First Respondent to use its land in proclaimed townships to maximum optimum. 6  In order to obtain funds from the Housing Department of the North- West Province, the First Respondent is bound to comply with a document known as “The Housing Code”, which is a government objective to undertake housing development in terms of the Housing Act, Act 107 of 1997 (“the Housing Act”).  Chapter 10 of the Housing Code provides for the redevelopment of existing hostels situated in townships. The Housing Code provides that single-sex hostels such as the Tlhabane female hostels be upgraded in a participation process which is described as follows:- “10(3) Principle applicable to the hostels redevelopment proposals The following principles for the public sector hostels re:- development program, must be adhered to and the PHDB’s will assess proposals on the basis of these principles. a. …. b. Participative process: The planning and design of the hostel redevelopment scheme upgrade must be done in an inclusive manner. This requires the formation of a representative Local Negotiating Group (LNG) comprising stakeholders such as the municipality (or PHDB), hostel residents, representatives of the neighbouring community, and local business people. The underlying principle is that all stakeholders affected by the hostel redevelopment scheme must participate in the LNG and related decision-making. It is understood that different role-players will participate in decision making at different levels of intensity 7 depending on the extent to which they are directly affected by the outcome of the redevelopment. Municipalities and Hotel Residents will thus participate at the highest level of intensity.” In compliance with these principles, the First Respondent motivated to its Council during 2004, that the then existing 28 stands on which the hostels had been erected, be developed for high density to accommodate more people in need of low-cost housing.  On 5 May 2005, a meeting was held to inform the then occupiers of the Tlhabane hostels of the redevelopment program. From the attendance register, of the well attended meeting, it appears that Pontsho Doreen Motswagae (the First Applicant) Elsie Seipati Tshite (the Fifth Applicant), Mmapoe Vivian Ramatshego (the Seventh Applicant), Elizabeth Manchibidu Moroka (the Ninth Applicant), Gertrude Ntebo Masike (the Tenth Applicant), Keitheng Salome Mogatusi (the Eleventh Applicant), Matinkane Jacobeth Khunou (the Twelth Applicant), Iketcetso Gravy Mogale (the Thirteenth Applicant) and Ntshetsana Rosinah Khun (the Fourteenth Applicant) were present. The First and Tenth Applicants were appointed as representatives of the Tlhabane Female Hostel occupiers to represent them in the local negotiating process.  Mr Ntsizwane, a unit manger of the Fist Respondent, informed the meeting of the role that the community would play in this development process up to the construction phase. He explained 8 the objectives of the public hostel redevelopment program as set out in Chapter 10 of the Housing Code. He assured the meeting that the existing occupiers would be accommodated in the future housing that would be supplied and provided by the First Respondents. He advised the occupiers to apply for RDP housing in order to ensure and secure future housing. The meeting was assured that no one would lose their right to housing or be left homeless because of the redevelopment program.  Subsequent to the meeting, the members of the local negotiating group inter alia, the Applicants collected a copy of Chapter 10 of the Housing Code from Mrs Bogosi a section manageress in the rental housing division of the First Respondent. The following are apparent:- The First Respondent was obliged to follow the guidelines in the Housing Code to ensure funding from the North West Provincial Government. The dwellings on the stands occupied by the Applicants are health and safety risks. The occupants reside rent-free in these structures and do not pay for other services. The hostels are over-crowded and on average four families share a 4-roomed dwelling, which is unacceptable. 9 The land, on which the existing units are erected, can be utilised to erect housing for 83 families as set out in the First Respondents’ housing program. The occupants of the dwellings have further aggravated the present situation by sub-letting the stands to homeless people who have erected shacks on the stands, as appears on the survey done by the First Respondent during March 2009. The internal and external engineering services of the dwellings and the township were not designed to serve the number of people currently using these dwellings and infrastructures. The land should be used more effectively and in an orderly manner. The inhabitants, namely the occupants and the shack dwellers, can be accommodated in the First Respondent’s RDP housing program. The housing program provides for people with no income up to different classes of income. Housing will therefore be provided according to these criteria. The Applicant’s real motive is to abuse the current unhealthy and unsafe circumstances due to the fact that it is for free. 10 From 2005 to 2007 the First Respondent put the redevelopment of the Tlhabane hostel out to tender to construction companies which were eventually appointed. The occupants were informed of alternative accommodation at Seraleng, which is a RDP housing program of the First Respondent.  Most of the Applicants and affected parties were not satisfied to accept alternative accommodation in Seraleng in 2007. This concern was later accommodated by the First Respondent when other facilities in Karlienpark were tendered to the affected parties. On 13 February 2008 a further public meeting was held at the dwelling at 1453 Nkosi Street.  The meeting which was also attended by the First Applicant was disrupted. The attendees screamed and shouted and made it impossible to proceed with the meeting. It was clear from their conduct that this was a pre-planned strategy so as to derail the redevelopment program.  In response to the manner in which the meeting was disrupted, the First Respondent addressed and distributed a further notice to the occupants on 15 May 2008, which had been written in Sesotho. The contents have been translated and read as follows:- 11 “We are informing you that despite what happened with the last meeting we are going to continue with the construction as agreed. We are dissatisfied about the behaviour of some tenants that are trying to disrupt our agreements. We pledge to the occupants to work hand in hand with the contractor and assist him with everything to run quickly and smoothly. Legal action will be taken against those who are disrupting the project and they will be evicted from Tlhabane Female Hostel. Your assistance will help improve your living conditions and assist the Government with housing delivery. Yours faithfully, Director: Planning and Human Settlement. 15 May 2008.” This was directed against Mr Jeff Moletsi and the parties who assisted him in disrupting the public participation process.  On 11 February 2009 a follow-up meeting was held at a venue known as the Assemblies of God Church in close proximity to the Tlhabane Hostel. The purpose of the meeting was to inform the affected parties of the progress of the Tlhabane Hostel redevelopment program and address further concerns of the community in this regard. The meeting was attended by all the Applicants except for the Sixth, Tenth, Twelfth and Fourteenth Applicants. The meeting was informed that:- 12 the First Respondent is proceeding with the erection of 83 family units; the construction would commence within six months; the affected parties will be allowed to rent units in the newly erected development; the persons affected by the development could apply for RDP housing and they were assured that nobody would be removed from the existing dwellings before an RDP house allocated to them had been completed.  Due to the fact that some of the affected parties contended that they had held ownership of the land through a Deed of Grant, in terms of the provisions of the Native Trust and Land Act these persons were called upon to show proof of such ownership. The meeting was assured that the new development would be rented out at affordable prices and the affected parties were encouraged to apply for RDP housing due to the fact that it would be free and in certain specified circumstances people would gain ownership if they qualified therefore. The RDP houses would be erected in Karlien Park, which is also an RDP development within the First Respondent’s housing program and was offered to the affected parties due to the fact that they were not happy with the RDP project in Seraleng. In response to the tender as to proof of ownership by way of Deed of Grant, a number of occupants presented the First Respondent with Deeds of Grant. Not one of the Applicants, however, are holders of Deed of Grant and can claim ownership to property in the township. 13  A further redevelopment meeting was held on 6 May 2009 at the Assemblies of God Church. Not one of the Applicants attended this meeting. The attorney acting for the Applicants informed the councillor who chaired the meeting, Councillor Pule, that she had instructed the Applicants not to attend this meeting. As the Applicants did not attend the meeting and due to the fact that the First and Tenth Applicant had been appointed as representatives of the Applicants and affected persons to participate in the management of the project, the First Respondent was obliged to appoint a new steering committee to manage the process. A Mrs Asnith Nkebile and Motole Leeboy were appointed to the steering committee to represent the Tlhabane Hostel occupants. The purpose of the meeting was to assist the affected parties to register for RDP houses and to discuss the interference in the construction process, which was taking place at that stage.  It is quite apparent that cooperation and further participation in the consultative process were halted by the Applicants and that they opted to approach this Court for an order as set out in paragraph  above. Hence the present application. [C] The relief sought:-  The relief that the Applicants is seeking is in the form of a final interdict. In order to succeed, there are three requisites that must be met, all of which must be present, to wit:- [a] a clear right; 14 [b] an injury actually committed or reasonably apprehended; [c] the absence of any other remedy available to the Applicant. See:- Setlegelo v Setlogelo 1914 AD 221. Erasmus: superior Court Practice E8 to C6c. I will now deal with each of these requirements and its applicability to the facts of this case, in turn. [a] Clear right:-  The Applicants contended that the construction work that is presently under way on the stands infringes on their clear right to remain on and live peacefully. On the other hand, the First Respondent contended that, whilst respecting the personal rights of the Applicants, their right to privacy and to remain in the structures pending the implementation of the housing project, they do have the right to enter onto the said stands in order to install services in terms of their construction contract with the Second Respondent. The Applicants’ right to privacy and to remain in the structures on the stands in the meantime have not been affected by the construction activities.  Insofar as there exists factual disputes between the parties as to the content of the Applicant’s clear right and to the question whether an injury was actually committed, it is contended that the factual disputes should be resolved based on the test enunciated in Plascon-Evans Paints Ltd to Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 E-G, namely that the interdict sought 15 can be granted only if the facts as stated by the Municipality together with admitted facts in the Applicant’s affidavit, justify the granting thereof. See:- Nampesca SA Products (Pty) Ltd v Zanderer 1999 (1) SA 886 (C) at 892 H.  In my view, the First Respondent is by means of subrogation the owner of the property in question. There is no proof of any form of spoliation committed by the Respondents. As such, the Applicants does not have a clear right to the property in question. [b] An injury actually committed or reasonably apprehended:-  The Applicants contended that each of the stands is fenced and forms a separate freestanding unit. The First Applicant’s agent entered upon the stand of the First Applicant, without her consent, in order to dig a trench next to her house. This behaviour instilled fear upon the other Applicants that the same fate will befall them. Therefore, so it was contended, that the Applicants’ have established an injury actually committed and a reasonable apprehension of further injury.  Applying the Plascon-Evans principle, the version of the First Respondent is to be accepted that the Applicants’ right to privacy and to remain in the structures pending the implementation of the housing project, have not been affected by the construction activities. 16 [c] The availability of Alternative remedies:-  Applicants contended also that there is no other remedy available to them to protect their peaceful possession of the properties. To the contrary, it was contended by the First Respondent that the housing project started during 2004 based on an administrative decision that was taken on 30 August 2004 to redevelop the hostel stands into higher density.  The Applicants have been well aware of the decision since 5 May 2005 when the first meeting took place in which the housing project was introduced to the community and the Applicants. At this meeting the Applicants were assured that no-one would be left homeless. The fact that the Municipality received no opposition to its administrative decision motivated it to put the construction out to tender between 2005 and 2007. Subsequent thereto, several public meetings took place, namely 13 February 2008, 15 May 2008 and 12 February 2009. The Applicants derailed the public meeting held in February 2009 when it refused to participate in the housing project any longer. The Applicants failed, however, to contest the administrative decision for the implementation thereof which is a remedy which should have been followed had they felt unhappy because of the housing and construction process. [D] Counter Application:-  The relief claimed in the counter-application is two-fold, namely:- 17 restraining the Applicants from intervening and refusing the contractors to execute construction work under a Service Level Agreement to premises known as the Tlhabane Hostel; and authorising the First Respondent and its agents to enter upon a land known as the Tlhabane Female Hostels to lay down any surface or underground infrastructure which may be required to complete the Service Level Agreement between the First Respondent and Phepedi Consulting Engineers.  No opposition to the counter application had been filed. The Applicants only raised their objection to the counter application in their heads of argument. It is noteworthy to mention that the First Respondent in its counter application does not seek an eviction order against the Applicants. In actual fact, the First Respondent tenders alternative accommodation to the Applicants. [E] Conclusion:-  In my view, the Applicants have failed to meet the requisites for the granting of a final interdict and therefore failed to make out a case for the granting of the relief sought. The application stand to be dismissed with costs.  The First Respondent’s counter application should succeed. Opposition to the granting thereof is contained in the heads of 18 argument filed on behalf of the Applicants. No opposing affidavits to the counter application have been filed neither was a replying affidavit filed. In my view, the Applicants must also pay the costs of the counter-application as there is no plausible reason why costs should not follow the result. [F] Order:- Consequently, the following order is made:- [i] The main application is dismissed with costs. [ii] An order is granted in terms of paragraphs 2, 3 and 4 of the counter-application. R D HENDRICKS JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANTS: NIENABER & WISSING 19