(WESTERN CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE NO. 8969/2007

In the matter between:

THE ARK CITY OF REFUGE					APPLICANT

And
MIKE BAILING 					FIRST RESPONDENT
THERESA BAILING 					 SECOND RESPONDENT
MAGDALENE SCHIPPERS 				 THIRD RESPONDENT
JOHN MENTOOR 					FOURTH RESPONDENT
MARTHA MENTOOR 					FIFTH RESPONDENT
THE CITY OF CAPE TOWN				SIXTH RESPONDENT
Coram 							DLODLO. J
Judgment by 						DLODLO. J

							DURBAN V1LLE
							(REF.S.BREDELL/BM/101M10)
							TEL NO.021  976 3194

							Cnr Burg & Strand Street.
							CAPETOWN

							(Re(. R. Marcus/cvdv/N29944) 

							1 Adderley Street 

							(Ref.LG Nuku/R, Jivana) 

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE NO. 8969/2007

In the matter between:

THE ARK CITY OF REFUGE					APPLICANT

And
MIKE BAILING 					FIRST RESPONDENT
THERESA BAILING 					 SECOND RESPONDENT
MAGDALENE SCHIPPERS 				 THIRD RESPONDENT
JOHN MENTOOR 					FOURTH RESPONDENT
MARTHA MENTOOR 					FIFTH RESPONDENT
THE CITY OF CAPE TOWN				SIXTH RESPONDENT

JUDGMENT DELIVERED ON WEDNESDAY, 15 SEPTEMBER 2010 
DLODLO, J

[1] This is an application for eviction in terms of the provisions of section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act"). The Applicant (a non-profit organization with registration number N.P.O. 037-341 -a corporate entity with legal personality) applies Tor the eviction of the First to the Fifth Respondents from the property which it leases from the Provincial Government. The Applicant provides temporary refuge to destitute persons who arc in need of drug and alcohol rehabilitation. Mr. Verster appeared for the Applicant; Mr. Marcus appeared for the First, Second, Fourth and Fifth Respondents whilst Mr. Mbeleni appeared for the Third Respondent only.
[2] The Respondents are all resident at the abovementioned premises and have been for the past sixteen (16) to seventeen (17) years. The property on which the Applicant operates has room for some one thousand (1000) people. The Respondents have been accommodated in the property from 1992 and 1994 when the Applicant was still operating at the old premises. According to the papers, the lease of the new premises commenced in December 1998 when the Respondents were already residents. I am told that the written agreement of the new premises expired on 31 May 2002, but was renewed as from 1 June 2002 on a month to month basis. The Applicant pays a nominal rental of One hundred rands (Rl 00.00) per month to the Provincial Government. The Applicant relies on charity and volunteer employees for sustenance. According to the Founding papers the Applicant is not in the business of providing accommodation. It provides rehabilitation services (as stated above) to destitute people who need to be rehabilitated from drug and alcohol abuse, and as a concomitant, it also provides gratis accommodation to such a person and his/her family on a temporary basis until the destitute person is rehabilitated and is able to join society again. The service it provides is of a religious nature.

[4] In terms of these "conditions of entry" a person's stay is temporary and a person, who is (in the opinion of the Management) regarded as rehabilitated, will be given thirty (30) days to vacate the property. Similarly a person who finds employment is also given thirty (30) days to find another accommodation elsewhere but should he be unsuccessful in finding alternative accommodation, he/she may be allowed to remain on the Applicant's premises provided that he/she pays thirty (30%) percent of his/her salary to the Applicant for being accommodated. As pointed out earlier on in this Judgment, all these allegations are denied by the Respondents. The Respondents contended that they were unaware of these conditions, they also deny-that the signatures (purportedly theirs) appended on the document "conditions of entry" are their signatures. In other words, the Respondents' version is that they were not informed of the temporary nature of their slay on the Applicant's premises.

UNLAWFUL OCCUPATION
[5] The premises from which the eviction is sought is registered immovable property owned by the Western Cape Provincial Department of Public Works. The present application was preceded by an application for eviction in the Kuils River Magistrate's Court in December 2006 under case number 22315/2006. That application was withdrawn because (according to the version of the Respondents) the Department as lawful owner of the property did not support the application as they did not believe that the Respondents were unlawful occupiers in terms of the Act. The Applicant alleges in its Founding Affidavit that it is in control of the property and that the determination of who may occupy and/or be present or remain on the premises is solely within the province of the Applicant. The Applicant would therefore be a "person in charge" within the meaning of the Act defined in section 1 as "a person who has or at the relevant time had legal authority to give permission to enter or reside upon the land in question" and not an "owner" within the context of the Act.

(a)    The right to religion, belief and opinion, in that persons are required to complete a 50 day Bible Course and required to attend all church services and meetings:

(b)	The right to freedom of association in that persons are not permitted to have relationships with persons of the opposite sex or "affairs" with person of the same sex;
(c) 	The right to freedom of trade, occupation and profession in that persons are not permitted to seek employment during the currency of the Bible course;

[11] It is common cause between the parties that 30% of a person's income (staying at The Ark), even in the case of the recipient of a social grant, is to be paid to The Ark as a contribution towards their living expenses. For reasons which will appear below, however, it seems that this requirement or condition was not strictly enforced and that the Respondents did not find it possible to make this contribution each and even' month. This indeed may very well be contrary to public policy because it applies equally to income from employment and to social grants, even those of children. It places unnecessary financial pressures on persons living at The Ark and it keeps them financially disadvantaged perpetually, preventing them from saving or being able to move out. In any event, the payment of the 30% of income creates an impression that the legal relationship between the Applicant and the Respondents is one of lease as payments arc made to the Applicant and the Respondents are allowed to occupy the premises under the Applicant's control. Importantly, the Fourth Respondent also alleged that they always paid 30% of their social grants to the Applicant, but that they stopped doing so when the Applicant stopped providing food and clothing to them as the Applicant had so agreed.

THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998 ("PIE")

There are stringent provisions of the PIE Act which probably must also be set out infra in order to demonstrate how- serious the
Legislature is in its protection of the rights contemplated in Section 26 of the Constitution.
Section 4 (8) provides as follows:

(a)	a just and equitable date on which the unlawful occupier must vacate the land under the circumstances: and
(b)	the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).

"[6] The section requires that before an eviction order is granted the court must be satisfied that such order will be just and equitable to the applicant and the unlawful occupier. In determining whether an eviction is just and equitable, the court is required to consider amongst others, whether land has been made available or can reasonably be made available by a municipality or an organ of state for the relocation of the occupier. "

RELEVANT CIRCUMSTANCES

[17] The Respondents admit that they are fully rehabilitated in the sense that they are no longer burdened with the same problems as when they first came to the Ark. but that they simply cannot move as they do not have the means to procure alternative accommodation. On the Applicant's own version, and since the Respondents, despite their best efforts, have been unable to find alternative accommodation, it would not be just and equitable that the Respondents be evicted from the premises. It is not disputed, meaningfully by the Applicant, that alternative accommodation is not available to the Respondents. Although the Municipality is not the provider of accommodation in this particular matter, it is clear that the Municipality has simply-delegated these obligations to a charitable organization, being the Applicant, on the basis that it will perform a similar function to that of a municipality in providing accommodation for homeless and destitute people, a constitutional obligation which ultimately falls on the State.

The above formulation by the Constitutional Court puts in context the legal requirements and the approach that needs to be followed in matters of this nature. I fully agree with Sachs J in this regard. It is common cause that the Respondents do not have alternative accommodation and therefore whilst not an absolute requirement, the Court should be most reluctant to evict the Respondents from these premises, especially as these premises:

AVAILABLE LAND

[19] It is common cause that the Respondents do not have alternative accommodation available to them as is evidenced by the report of the City. Although the Applicant contends, baldly, that alternative accommodation is available, it provides no factual basis for this allegation. The Applicant did not elaborate on the aspect of available land and/or alternative accommodations in its Founding Affidavit save to merely make the allegation that there is alternative accommodation available in the area. The Respondents called on the Applicant to specify the alternative land that had been made available or could reasonably be made available for their relocation. The Applicant has not done so. The Fourth Respondent applied for housing for himself and the Fifth Respondent with the Cape Town Housing Department in January 2007, but he has not received a positive response from the Department regarding his application. The First and Second Respondents have also been unable to find alternative accommodation.

PERSONAL CIRCUMSTANCES
[20] The Respondents are all healthy individuals except for the Fourth Respondent who receives a disability grant due to him suffering from angina. None of the Respondents are elderly and none of the households are headed by women. The First Respondent is the sole, but limited, breadwinner for the Bailing family. The Second Respondent is not employed. They have three (3) minor children of school-going ages. The Fourth Respondent is unemployed and disabled as described above. His wife, the Fifth Respondent, is also unemployed as is their major son who lives with them. Their minor son attends school.

[21] The Applicant made an application to this Court as late as 30 October 2009 to join the City of Cape Town, the Sixth Respondent in the proceedings. The City- has indicated that it has no accommodation available for the Respondents. The City's report concludes with the statement that:

ORDER

[23]   In the circumstances I make the following order: