THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 937/13
In the matter between:
RUSTENBURG LOCAL MUNICIPALITY

Appellant
and
VINCENT MDANGO AND OTHERS

1-20th  Respondents
MEMBER OF THE EXECUTIVE COUNCIL FOR
HUMAN SETTLEMENT, PUBLIC SAFETY
AND LIASON, NORTH WEST PROVINCE

21st Respondent
THE MINISTER OF RURAL
DEVELOPMENT AND LAND REFORM

22nd Respondent

Neutral citation: Rustenburg Local Municipality v Vincent Mdango

(937/13) ZASCA 83 [30 May 2014]

Coram:
Mhlantla, Bosielo, Theron and Willis JJA and Swain AJA
Heard:
09 May 2014
Delivered:   30 May 2014
Summary: Eviction in terms of Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 – section 6 – eviction of
unlawful occupiers – power of court to make an order that is just and
equitable.

_____________________________________________________________

ORDER
________________________________________________________________
On appeal from: North West High Court, (Mafikeng), Gura J sitting as court
of first instance:
The appeal and cross-appeal are upheld to the extent set out below.
The order of the high court is set aside.
The matter is remitted to the high court for reconsideration.
Prior to the hearing of the matter in the high court:
(i)
The 21st and 22nd respondents are ordered, within 30 days of the grant of
this order, to file affidavits in which they set out the following details:
(a) The steps taken to ascertain the availability of suitable alternative
accommodation for the 1st to 20th respondents; and
(b) What alternative land and/or alternative accommodation is now or in the
near future likely to become available for the 1st to 20th respondents.
(ii)
The 1st to 20th respondents are ordered to file affidavits setting out their
personal circumstances including, but not limited to, the rights and needs of the
elderly, children, disabled persons and households headed by women, and any
such additional information that is relevant to a just determination of this
matter. These affidavits must be filed on or before 6 August 2014.
(iii)
The appellant may, within 15 days after the filing of the 1st to 20th
respondents‟ affidavits, file such affidavits as it deems necessary.
Pending the finalisation of this matter in the high court, the appellant is
interdicted from evicting the 1st to 20th respondents from the properties they are
currently occupying.

The high court is directed to afford the parties preference in respect of the
reconsideration of the matter.
The costs of the proceedings in the high court and in this court shall be
costs in the cause.
The appellant is directed to immediately serve a copy of this order on the
21st and 22nd respondents.

JUDGMENT

Mhlantla JA (Bosielo, Theron and Willis JJA and Swain AJA
concurring):

[1] On 9 May 2014, this court ordered a remittal of this matter to the high
court for reconsideration in terms of the orders set out above. We indicated that
the reasons for the order would follow. These are the reasons.

[2] This appeal and the cross-appeal are against the decision of the North
West High Court, Mafikeng (Gura J), in terms of which he granted an eviction
order against the respondents but suspended the order pending the availability
of suitable accommodation or land for the settlement of the respondents. The
appeal and cross-appeal are before this court with the leave of the high court.

[3] The appellant is the Rustenburg Local Municipality (the municipality), a
local municipality as defined in the Local Government: Municipal Structures
Act 117 of 1998. The first to twentieth respondents (the respondents) are
various occupiers of the Reconstruction and Development Program (RDP)

houses at Seraleng Township, Rustenburg. The Member of the Executive
Council for Human Settlement, Public Safety and Liason, North West (the
MEC) and the Minister of Rural Development and Land Reform (the Minister)
are cited as twenty first and twenty second respondents respectively.

Background
[4] The litigation leading to this appeal arose as a result of the respondents‟
conduct. During November 2007 the respondents invaded a number of RDP
houses owned by the municipality. These houses were due to be allocated to
applicants who had been approved by the municipality.  In September 2011,
the municipality launched an application in the North West High Court,
Mafikeng  and sought an order for the eviction of the respondents from these
houses in terms of the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE). No order was sought
against the MEC and the Minister.

[5] In the founding affidavit to which the acting municipal manager deposed,
he said that the respondents had illegally occupied the houses and that the
Housing Programme of the municipality was as a result hampered. He said that
the municipality had been informed that no land could be made available for
purposes of housing. In this regard, he declared that it would be advisable that
the MEC and the Minister participate actively in this matter with a view to
overcoming the impasse.

[6] The municipality‟s wish did not materialise as neither the MEC nor the
Minister participated in the litigation. Initially, the MEC filed a notice of
opposition but withdrew this a day later, electing to abide the decision of the

court. The court was therefore left in the dark with regard to the availability of
suitable alternative accommodation or land as well as steps taken to ascertain
the availability of suitable alternative accommodation and various other factors
relevant thereto.

[7] The respondents in their answering affidavit, revealed a sad state of
affairs regarding the issue of housing in this country. They provided a detailed
account of the history and circumstances that led them to occupy the houses. In
this regard, they stated that in 1996 they were inhabitants of an informal
settlement called Sondela. They later moved to an area known as Etipini when
Sondela became full. In 2002 they were uprooted officials of the municipality
with a promise that their area was earmarked for a development of RDP houses.
They were advised to submit their names to the relevant officials who would
compile a list for their allocation to the houses to be built in Etipini. Thereafter,
they were moved to an area called Egcibhala whilst the building construction of
the RDP houses at Etipini was conducted. They stayed in shacks and remained
at Egcibhala until 2005.

[8] In 2005, the construction of RDP houses at Etipini was completed. The
respondents expected the municipality to allocate the houses to them in terms of
the agreement but were shocked to discover that most of the houses had already
been allocated to persons unknown to them. They enquired from the officials
about the situation and the municipality‟s failure to honour the agreement. They
did not receive a positive response. Instead, the municipality demolished their
shacks at Egcibhala. As a result, the respondents found themselves homeless.

[9] The respondents found some vacant land at Etipini. They again engaged
the municipality and sought damages for the demolition of their properties.
They also requested that they be considered for allocation of RDP houses that
were being constructed at Egcibhala. Discussions were held with ward
councillors. The respondents further alleged that in 2006, they discovered that
the municipality had allocated these houses to other people. Owing to their
experience and, in despair, they decided to occupy the houses as it became clear
to them that the municipality had no intention of honouring the agreement. At
that stage their shacks had already been demolished.

[10] The application in the high court came before Gura J. That court correctly
found that since the municipality had not allocated the RDP houses to the
respondents, they were in unlawful occupation thereof. Regarding the question
whether it would be just and equitable to evict the respondents, the judge
lamented the paucity of information. The court was concerned about the attitude
of the municipality and its failure to suggest any plan regarding the resettlement
of the occupiers as well as its failure to provide steps taken to consider the issue
of alternative accommodation or land. Notwithstanding the concerns raised, the
court granted an order for the eviction of the respondents, but suspended it
pending the availability of suitable accommodation or land for the settlement of
the respondents.

[11] Both parties were not satisfied with the outcome. The high court granted
them leave to appeal and cross-appeal to this court.

[12] In this court, the issues were twofold. First, whether it was just and
equitable to evict the respondents. Second, whether the court below erred in
suspending the eviction order.

Legal Framework
[13]  Sections 26 and 28 of the Constitution are the key constitutional
provisions at issue in this case. Section 26 provides:
„Housing –
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order
of court made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.‟

[14] Section 28 reads:
„Children-
(1) Every child has the right -
(a) . . .
(b)  . . .
(c) to basic nutrition, shelter, basic health care services and social services;
(d)  . . .

[15] The current state of our law in regard to evictions and giving effect to
section 26 of the Constitution is found in PIE. Section 6 of PIE governs the
eviction proceedings by an organ of state and reads:

„Eviction at instance of organ of state-
(1) An organ of state may institute proceedings for the eviction of an unlawful occupier from
land which falls within its area of jurisdiction, except where the unlawful occupier is a
mortgagor and the land in question is sold in a sale in execution pursuant to a mortgage,
and  the court may grant such an order if it is just and equitable to do so, after
considering all the relevant circumstances‟ and if –
(a) the consent of that organ of state is required for the erection of a building or structure
on that land or for the occupation of the land, and the unlawful occupier is occupying
a building or structure on that land without such consent having been obtained; or
(b) it is in the public interest to grant such an order.
(2) For the purposes of this section, “public interest” includes the interest of the health and
safety of those occupying the land and the public in general.
(3)  In deciding whether it is just and equitable to grant an order for eviction, the court must
have regard to –
(a) the circumstances under which the unlawful occupier occupied the land and erected
the building or structure;
(b) the period the unlawful occupier and his or her family have resided on the land in
question; and
(c) the availability to the unlawful occupier of suitable alternative accommodation or
land.‟

[16] At the commencement of the appeal, we raised our concerns with counsel
for both parties about the paucity of information and in particular the fact that
the MEC had elected to abide the decision of the court instead of providing
information relating to alternative suitable accommodation, and the fact that the
municipality had failed to submit a report about any steps taken by it to provide
alternative suitable accommodation to the respondents. We were also concerned
about the respondents‟ failure to bring their personal circumstances to the
attention of the court below.

[17] It is imperative that a court seized with an application in terms of section
4 or 6 of PIE must take all relevant factors into consideration before granting an
eviction order. We referred counsel for the parties to the decision of this court in
Ekurhuleni Metropolitan Municipality & another v Various Occupiers, Eden
Park Extension 5,1 where Ponnan JA said:
„[T]he enquiry to be undertaken is therefore whether, given all the relevant factual, legal and
socio-economic circumstances, it is just and equitable to order the eviction of the unlawful
occupier:
“This requires a court to make a value judgment, but it must not do so in a vacuum.”
There are various considerations relevant to this determination, as outlined both in the Act
and through the case law, with each factor taking on either an increased or lesser importance
depending on the prevailing factual matrix of each matter. According to Chenwi the
following are potentially relevant to the enquiry:
“(i) [T]he manner in which the occupation was effected; (ii) the duration of the occupation;
(iii) the availability of suitable alternative accommodation or land; (iv) reasonableness of
offers made in connection with suitable alternative accommodation or land; (v) the timescales
proposed relative to the degree of disruption involved; (vi) the willingness of the occupiers to
respond to reasonable alternatives put before them; (vii) the extent to which serious
negotiations have taken place with equality of voice for all concerned; and (viii) the gender,
age, occupation or lack thereof and state of health of those affected. . . [and] the manner of
execution of the eviction order, that is, whether it was executed humanely… Furthermore, the
interests of surrounding communities as well as the negative impact of “land gaps” on
investor-confidence in the country, and the right of landowners (discussed subsequently),
have been regarded by the courts as relevant factors.”‟

[18] In coming to its decision in Ekurhuleni, this court was influenced by the
Constitutional Court decisions in Government of the Republic of South Africa &

1 Ekurhuleni Metropolitan Municipality & another v Various Occupiers, Eden Park Extension 5 [2014] 1 All
SA 386 (SCA) para 19.

others v Grootboom & others, Joe Slovo Community, Western Cape v
Thubelisha Homes & others (Centre on Housing Rights and Eviction & another,
Amici Curriae) as well as Port Elizabeth Municipality v Various Occupiers.2
The decision of Ekurhuleni is instructive. It is undesirable for the courts to make
orders of eviction where the information or factors referred to in Ekurhuleni are
lacking or insufficient. In the present case, it is common cause that the
respondents have been in occupation since 2007. Their personal circumstances
including the rights and needs of the elderly, children, disabled persons and
households headed by women must be placed before the court. Similarly, the
MEC‟s involvement and input is crucial to the determination of whether it will
be just and equitable to evict the respondents.

[19] In the result, counsel for both parties conceded that insufficient
information was presented in the high court. They agreed that the matter should
be remitted to the high court and that both parties including the MEC be
allowed to provide the relevant information to enable the court to make a proper
determination of the issues.

[20] It is for these reasons that the order to which reference was made in the
first paragraph above was made.

__________________
NZ MHLANTLA

JUDGE OF APPEAL

2  Government of the Republic of South Africa & others v Grootboom & others 2001 (1) SA 46 (CC) paras 82
and 83; Joe Slovo Community, Western Cape v Thubelisha Homes & others (Centre on Housing Rights and
Eviction & another, Amici Curriae) 2010 (3) SA 454 (CC) para 148; Port Elizabeth Municipality v Various
Occupiers 2003 (2) SA 363 (CC), (2003 (2) BCLR 111) paras 35 and 36.

APPEARANCES:

For Appellants:

H Lever SC (with him O.K Chwaro)

Instructed by:

Kgomo Mohetle & Tlou Attorneys
c/o Bezuidenhouts Inc, Bloemfontein

For Respondents:
P Shapiro

Instructed by:
S Shapiro Attorneys
Johannesburg
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 May 2014
Status:
Immediate

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.

Rustenburg Local Municipality v Vincent Mdango and others (937/13)
[2014] ZASCA 83 (30 May 2014)
Today, the Supreme Court of Appeal (SCA) handed down a judgment in an appeal and a
cross-appeal from the North West High Court, Mafikeng. The high court had granted an
eviction order against the respondents, being various occupiers of certain RDP houses in a
township within the jurisdiction of the appellant (the municipality). That order was suspended
pending the availability of suitable accommodation or land for their resettlement.
In 2007 the respondents had invaded the RDP houses owned by the municipality, which had
been due to be allocated to approved applicants. In 2011 the municipality launched an
application in the high court and sought an order for the respondents’ eviction pursuant to the
Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE).
While the municipality had joined both the MEC for Human Settlement, Public Safety and
Liason(MEC), North West and the Minister of Rural Development and Land Reform(the
Minister), neither participated in the proceedings either before the high court or on appeal. As
a result, no information relating to the availability of suitable alternative accommodation or
land was put before the court.

The high court, in finding that the respondents were in unlawful occupation of the RDP
houses, lamented the paucity of information before it but nevertheless held that it would be
just and equitable to order the respondents’ eviction. That order was then suspended pending
the availability of suitable accommodation or land for their resettlement. Both parties were
dissatisfied with the outcome and the high court granted them leave to appeal and cross-
appeal respectively.
In this court the issues were twofold, namely, whether it was just and equitable to evict the
respondents; and whether the court below erred in suspending the eviction order.
The SCA referred to the applicable legal framework including decisions of this court and of
the Constitutional Court relevant to the issue. The court held that it was imperative that a
court seized with an application in terms of section 4 or 6 of PIE should take all relevant
factors into consideration before granting an eviction order. Further, that it was undesirable
for the courts to make orders of eviction where the information regarding such factors were
lacking or insufficient, as the court would be unable to determine what is just and equitable in
the circumstances. In the present case, this court noted its concern with the paucity of
information before the high court. In this regard, it held that the respondents, who have been
in occupation of the property since 2007, should have submitted to the high court their
personal circumstances including the rights and needs of the elderly, the children, disabled
persons and households headed by women. Furthermore, the municipality was obliged to
submit a report about any steps taken by it to provide alternative suitable accommodation to
the respondents and that the MEC’s input was crucial to the determination of whether it was
just and equitable to evict the respondents.
In the result, this court set aside the order of the high court and remitted the matter to the high
court for reconsideration. The MEC, the municipality and the respondents were ordered to
place all relevant information before that court to enable it to make a proper determination of
the issues.