THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:   280/2008

EKURHULENI METROPOLITAN
MUNICIPALITY                                                                                  Appellant

and

EBRAHIM DADA N.O.                                                          First Respondent

YUSAF EBRAHIM OSMAN N.O.                                    Second Respondent

ESSOP SHAIK N.O.                                                            Third Respondent

SHAUKAT THOKAN N.O.                                                Fourth Respondent

ABDUL’ MAJEED DAWOOD N.O.                                       Fifth Respondent

ISMAEL ESSA PATEL N.O.                                                Sixth Respondent

THE UNLAWFUL OCCUPIERS OF PORTION 41         Seventh Respondent

Neutral citation:
Ekurhuleni Municipality v Dada N.O. (280/2008)[2009]
ZASCA 21 (27 March 2009)

Coram:
Harms DP, Brand, Mhlantla JJA, Hurt and Bosielo AJJA

Heard:
5 March 2009
Delivered:
27 March 2009

Summary:
Review by court of conduct of municipality – Judge making
order that municipality should purchase property on which
informal settlement established – Such order not sought by
parties, but clearly the result of a preconceived solution arrived
at by the judge – Such a prohibited usurpation by judge of the
functions and duties of the municipality – Lack of ‘judicial
deference’ displayed by judge in considering the municipality’s
working procedures, conduct and decisions – Order to purchase
property set aside.

_____________________________________________________________

ORDER

On appeal from: Johannesburg High Court (Cassim AJ sitting as court of
first instance)

The appeal succeeds to the extent that paragraph 1 of the order of the
high court is set aside. There will be no order as to costs.

JUDGMENT

HURT AJA (HARMS DP, BRAND, MHLANTLA JJA and BOSIELO AJA
concurring):

[1] 'In exercising the judicial function, judges are themselves constrained
by the law.' This dictum from the recent decision of this court in National
Director of Public Prosecutions v Zuma1 restates a time-honoured rule and is
probably a sanguine reminder to a judiciary which might often, in its efforts to
achieve the objects of the Bill of Rights in the Constitution, be tempted to
chafe against the concept of 'progressive' as opposed to 'immediate'
realisation of constitutional objectives, especially at the governmental and
municipal levels. This is a case in point. It is an appeal against an order
granted by Cassim AJ in the Johannesburg High Court, in which, inter alia, he
ordered the appellant, a municipality, to purchase a property on which an
informal settlement had been established, in an application in which the
eviction of the occupants of the property had been sought. The appeal is
brought with leave granted by Cassim AJ.

[2] The first six respondents are the trustees of the Islamic Dawah
Movement Trust, the owner of a property described as 'Portion 41 of the Farm
Rooikop 140' (and referred to in this judgment as 'the property') situated in the
area of jurisdiction of the Ekurhuleni Municipality. In November and December

1 2009 (2) SA 277 (SCA) para 15.

2004 approximately 76 families moved onto the property from an informal
settlement on a neighbouring piece of land which had become uninhabitable
because of flooding and marshy conditions generated by the summer rains.

[3] In July, 2006, the Trust brought an application in the Witwatersrand
Local Division of the High Court for the eviction of these families, collectively
cited in this appeal as the seventh respondent, to whom I shall refer as 'the
occupiers'. The application was governed by the procedure prescribed in the
Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19
of 1998, and the municipality was joined as the second respondent (the
occupiers being jointly cited as the first).

[4] The occupiers opposed the application. They did not deny that their
occupation of the property was unlawful, but alleged that they had taken
occupation under a bona fide belief that they had authority from an official of
the municipality to do so. In a counter application in which the municipality
was cited as the respondent in reconvention, they contended that the
municipality was duty-bound in terms of s 26(2) of the Constitution to 'devise
and implement within its available resources a comprehensive and co-
ordinated programme progressively to realise (the occupiers) right of access
to adequate housing'. It was submitted, in this regard, that the municipality
was obliged to 'include reasonable measures to provide relief for (the
occupiers) who, upon eviction from (the property) will have no roof over their
heads and will have to live in intolerable conditions and in a situation of
crisis'.2 The broad contention in this regard was that the plight in which the
occupiers found themselves was due to the municipality having failed to
comply with its constitutional duties. In a Notice of Counter Application,
annexed to the answering affidavit in the main application, they sought
elaborately-framed relief in the form of a declarator concerning the
municipality's constitutional obligations; an interim interdict against their
eviction by the Trust; an order that the municipality comply with its
constitutional obligations and report to the court as to its compliance within a

2 The quotation is from the affidavit supporting the counter application.

period of three months; and provisions to regulate any debate before the court
arising from the contents of such report.

[5] The municipality, in its riposte to the contentions founding the counter
application, took certain procedural objections which, though they were
certainly not without substance, need not be dealt with in this judgment. As to
the contentions by the occupiers that the municipality had done nothing to
afford them access to housing for the four-year period from 2002 to 2006, and
appeared to have no plan to render their living conditions more acceptable,
the deponent for the municipality dealt in detail with the statutory framework in
place for this aspect of the municipality's administrative duties and annexed to
his affidavit voluminous documents setting out what are described as
'Strategic Frameworks' and 'Integrated Development Plans'. These reflect the
municipality's planning to achieve the objects of s 26(2) of the Constitution
through implementation of the provisions of, inter alia, the Housing Act 107 of
1997, the National Housing Programme, the Development Facilitation Act, 67
of 1995, the National Environmental Management Act, 107 of 1998 and the
Regulations promulgated under ss 24 and 24D of that Act. The contention
was that these statutes, regulations, policies and plans represented an
ordered, properly prioritised, progressive policy to achieve the objects of the
Constitution.

[6] In reply to the municipality's answering affidavit, the deponent for the
occupiers pinpointed the provisions concerning 'emergency housing' in
chapters 12 and 13 of the Housing Code. There had been no reference in the
founding affidavit in the counter application to these provisions. The
municipality delivered an application to strike out the passages in the replying
affidavit, referring in particular to the Housing Act and the Housing Code, on
the basis that they constituted 'new matter'.

[7] In this state, the matter came before Cassim AJ in the court a quo. As
to what transpired on the first day of the hearing, the record is silent. But one
gleans from what was said at the commencement of proceedings on the
second day, that the Judge had informed counsel that there should be

evidence from representatives of the municipality about what had been done
by that body to alleviate the plight of the occupiers during the twenty months
which had, by the date of the hearing, elapsed since the application had been
lodged in July, 2006. Whether the learned Judge took the view that there were
disputes of fact on the papers which required oral evidence for their
resolution, or whether he considered that he should conduct a personal
investigation by questioning the employees of the municipality for the purpose
of exercising the discretion to evict in terms of s 4(7)3 of PIE, is not clear. At
the commencement of the proceedings on the second day, he was told that
the parties had agreed to ask him to separate the issues and to rule first on
the counter application.

[8] It is apparent from the tenor of the questions put by him to the two
municipal employees, that the Judge had, before hearing their evidence,
resolved to order the municipality to buy the property for a price of R250 000. I
say this because, having asked the first witness what the municipality was
doing to provide homes for poor people, and having been told that there was
a plan in place aimed at eradicating all informal settlements by the year 2014,
the record of his further questioning runs thus :
'Now if I were to make an order that (the municipality has) to buy the property, will
Gauteng then make the moneys available? . . . Ja, well we can apply for the, to make
money available.
But look, if you said there is an order of the judge of the high court, we need R250
000.00 they must make the money available? . . . . They must make the money
available ja.'

[9] The answer to the second question above was clearly a hypothetical
one, because, for the rest of his sojourn in the witness box, this witness
endeavoured to explain the prescribed procedure which the municipality was
obliged to follow before it could properly resolve to buy immovable property.
The second witness called on behalf of the municipality fared similarly. She

3 It emerges from para 9 of his judgment that he called for the oral evidence 'in the exercise of
(his) discretion', for the purpose of 'considering the counter-application in motion proceedings'
although he appears to have made no attempt to define the issues of fact which he intended
to resolve by way of the oral evidence.

tried in vain to point out to the judge that before the municipality could acquire
the property for development, certain statutory procedures had to be followed,
such as an environmental impact assessment, a geotechnical assessment,4
the acquisition of the requisite additional funds from the Provincial Housing
Department, formal municipal procedures such as obtaining an empowering
resolution from the Council, the provision of essential services to the property,
etc. All of these the judge simply shrugged off as unnecessary beaurocracy,
reiterating to the witness his suggestion that if an order was made by a high
court judge directing the municipality to buy the property, that order would
have to be complied with without the delays occasioned by the prescribed
procedures. I should mention that in the course of this evidence, reference
was made of a proposal to lease the property for a year at a rental of R1800
per month, but this information, too, was received with discernible apathy by
the Judge.

[10] In his judgment the Judge expressed his disapproval of the level of
inactivity, with regard to the circumstances of the occupiers, shown by the
municipality particularly over the period between the lodging of the eviction
application and the date of the hearing. He found that this constituted a failure
by the municipality to comply with its constitutional duties. In the course of
reviewing the law concerning the court's role in the enforcement of
fundamental rights, such as the right of access to housing, he referred to the
well-known decisions in Government of the RSA and Others v Grootboom
2001 (1) SA 46 (CC) and President of RSA v Modderklip Boerdery (Pty) Ltd
2005 (5) SA 3 (CC), but expressed the view that the courts had not gone far
enough towards enforcing the rights in s 26 of the Constitution in these
cases.5 On this basis, it seems, he apparently decided that the courts should
be galvanized into taking a 'robust approach' to the implementation of the
provisions of the Constitution. This type of approach is probably the very

4 To ensure that the land was not rendered unfit for housing by subterranean dolomite
deposits which occur regularly in that area.
5 In para 37 of the judgment he said 'I appreciate and understand that the approach I adopt in
this matter may well be viewed not only as ordering the State to fulfil its obligations, but also
telling it how to do so and that this would be a breach of the rule on separation of powers (see
for instance : President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) at
27B)'.

antithesis of the approach which this court and the Constitutional Court have
endorsed in a number of recent decisions. In Logbro Properties CC v
Bedderson NO and Others 2003 (2) SA 460 (SCA), para 21, Cameron JA
referred, in the context of a necessity for 'judicial deference', with approval to
the following passage from an article by Cora Hoexter entitled 'The Future of
Judicial Review in South African Administrative Law' (2000) 117 SALJ 484, at
501 to 502, which is to the following effect:
'. . . the sort of deference we should be aspiring to consists of a judicial willingness to
appreciate the legitimate and constitutionally-ordained province of administrative
agencies; to admit the expertise of these agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect; and to be sensitive
in general to the interests legitimately pursued by administrative bodies and the
practical and financial constraints under which they operate. This type of deference is
perfectly consistent with a concern for individual rights and a refusal to tolerate
maladministration.'
This passage was also referred to with approval  and the theme taken up by
Schutz JA in Minister of Environmental Affairs v Phambili Fisheries (Pty) Ltd
2003 (6) SA 407 (SCA), paras 52 and 53, where, after quoting the passage
set out above,  the learned judge said:
'I agree with what is said by Hoexter (op cit at 185):
"The important thing is that Judges should not use the opportunity of scrutiny
to prefer their own views as to the correctness of the decision, and thus
obliterate the distinction between review and appeal."
[53] Judicial deference is particularly appropriate where the subject matter of an
administrative action is very technical or of a kind in which a Court has no particular
proficiency. We cannot even pretend to have the skills and access to knowledge that
is available to the Chief Director. It is not our task to better his allocations, unless we
conclude that his decision cannot be sustained on rational grounds.'6

[11] The learned Judge failed to have regard to these precepts and, in the
result, he made an order in the following terms:

6 Paras 52 and 53. This dictum was expressly approved in the subsequent appeal to the
Constitutional Court sub nom Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others 2004 (4) SA 490 (CC).

'(1)
The Second Respondent is directed to purchase the property from the
Applicants at a purchase consideration of R250 000.00 within 30 (thirty) days from
the date of this order.
(2)
The Second Respondent is required to forthwith make provision of essential
services to the occupiers of the property.
(3)
There will be no order as to costs.'

[12] On appeal before us the municipality sought only to set aside
paragraph (1) of this order, the services referred to in paragraph (2) having
apparently been supplied (or being in the process of being supplied) already.

[13] There can be no doubt that the order that the municipality should
purchase the property stemmed from a pre-conceived notion on the part of
the Judge that it was time 'to get things moving' as it were. He was not asked,
in the papers or in the course of evidence, to make such an order and it  was
not rationally related to the evidence which was adduced concerning the
municipality's policies and plans and the extent of its immediate obligations to
alleviate the plight of these particular occupiers. He had plainly persuaded
himself that it was time to cut across the principles of 'progressive realisation'
of housing access emphasized in the decisions of the Constitutional Court to
which he had referred. In this he fell foul of another fundamental rule
emphasized in Bato Star and the other cases dealt with in para 10, and also in
Zuma, supra, at para 16, viz:
'Judges as members of civil society are entitled to hold views about issues of the day
and they may express their views provided they do not compromise their judicial
office. But they are not entitled to inject their personal views into judgments . . . '

[14] Counsel for the occupiers was asked, in argument,  to refer this court
to any decided case, in the Republic or elsewhere, where an equivalent order
had been made and she was (not surprisingly) unable to do so. The only
basis upon which she attempted to defend the order was that the court had
taken an appropriately 'robust' approach to the solution of the occupiers'
problems, but such a submission does not warrant serious consideration in
the circumstances of this case. The Judge was perhaps right in coming to the

conclusion that the municipality had not dealt with the problems of the
informal settlement on the property with the measure of alacrity which could
reasonably be expected of them. But that did not justify his adopting a solution
which was well outside the limits of his powers. Even if he considered that the
occupiers were entitled to by-pass the statutory provisions expressly enacted
by Parliament for the purpose of implementing the rights entrenched in
chapter 2 of the Constitution,7 he was nevertheless bound to consider the
occupiers' case under the provisions of s 38 of the Constitution, in which
event he was empowered to grant 'appropriate relief'. The order that the
municipality should purchase the property was plainly not 'appropriate relief'. It
follows that the appeal should succeed to the extent that that part of the order
must be set aside. The order for the provision of services to the property by
the municipality, being accepted by that body, will stand. The issue in the
main application relating to the eviction of the occupiers has yet to be set
down for hearing and dealt with by the court of first instance. Neither party
contended that it was entitled to an order for costs of the appeal.

[15] The appeal succeeds to the extent that paragraph 1 of the order of the
court a quo is set aside. There will be no order as to costs.

_______________________

NV HURT

ACTING JUDGE OF APPEAL

7 See, e.g. MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) at
para 40.

Appearances:

For Appellant:
GI Hulley

Instructed by:

Klopper Jonker Alberton

Wessels & Smith Inc Bloemfontein

For Respondent:
URD Mansingh (Ms)

Instructed by:

Respondents 1 ─ 6

Fullard Mayer Morrison Inc Sandton

Respondent 7

Webber Wentzel Bowens Johannesburg

Respondents 1 ─ 6

Lovius Block Bloemfontein

Respondent 7

Webbers Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

27 March 2009

STATUS:
Immediate

Ekurhuleni Municipality v Dada N.O. (280/2008)[2009] ZASCA 21 (27 March 2009)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

The SCA today set aside an order which had been made by the Johannesburg High Court to
the effect that the Ekurhuleni Municipality should purchase a property, on which an informal
settlement had been established, for a price of R250 000. The SCA held that the judge of first
instance did not have the power to make such an order in the circumstances of the case.