City of Johannesburg Metropolitan Municipality and Others v Hlophe and Others (1035/2013) [2015] ZASCA 16 (18 March 2015)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 1035/2013

In the matter between:

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY FIRST APPELLANT

EXECUTIVE MAYOR,

CITY OF JOHANNESBURG SECOND APPELLANT

CITY MANAGER,

CITY OF JOHANNESBURG THIRD APPELLANT

EXECUTIVE DIRECTOR: HOUSING,

CITY OF JOHANNESBURG FOURTH APPELLANT

and

PHILANI HLOPHE FIRST RESPONDENT

RESIDENTS OF CHUNG HUA MANSIONS,

191 JEPPE STREET,

JOHANNESBURG SECOND TO 182^nd RESPONDENTS

CHANGING TIDES PROPERTIES

74 (PTY) LTD 183^rd RESPONDENT

Neutral citation: City of Johannesburg Metropolitan Municipality v Hlophe (1035/2013)

[2015] ZASCA 16 (18 March 2015).

Coram: Brand, Maya and Willis JJA and Schoeman and Van der Merwe AJJA

Heard: 19 February 2015

Delivered: 18 March 2015

Summary: Local government ─ mandamus obliging responsible functionaries to ensure that municipality complies with court orders ─ competent and appropriate in the circumstances ─ additional reporting required by the order of the court a quo order beyond issues arising in the case and in conflict with the principle of separation of powers ─ consequently set aside on appeal.

______________________________________________________________

ORDER

______________________________________________________________

On appeal from South Gauteng High Court, Johannesburg (Satchwell J

sitting as court of first instance):

1 The appeal succeeds only to the extent that para 2 of the order of the court a quo is set aside.

2 The appellants are ordered to pay the costs of the appeal, including the costs of two counsel where so employed.

______________________________________________________________

JUDGMENT

______________________________________________________________

Van der Merwe AJA (Brand, Maya and Willis JJA and Schoeman AJA concurring):

[1] The 183^rd respondent, Changing Tides Properties 74 (Pty) Ltd (Changing Tides), is the registered owner of the property known as Chung Hua Mansions, 191 Jeppe Street, Johannesburg (the property). The property is situated in the centre of Johannesburg. The building on the property was originally used as an office block, but it was eventually abandoned and became a shelter for poor and homeless people. Changing Tides has since acquired the property and intends to renovate and upgrade it.

[2] The first to 182^nd respondents (the occupiers) reside on the property unlawfully. The first appellant is the City of Johannesburg Metropolitan Municipality (the City). The second, third and fourth appellants (the functionaries) are the executive mayor, city manager and director of housing of the City in their respective official capacities.

[3] Changing Tides obtained an order of eviction of the occupiers from the property. The eviction order was to take effect only after the City provided suitable temporary accommodation to the occupiers. The City was therefore ordered to do so. But the City failed to comply with this order and the essential issue in this appeal is whether an order obliging the functionaries to ensure compliance by the City was justified.

Background

[4] Changing Tides launched its application for eviction in the South Gauteng High Court on 26 May 2011. It cited the occupiers and the City as respondents. The eviction application first came before court on 29 February 2012, when an order was made by agreement between Changing Tides, the occupiers and the City. The order directed the City to consider the eligibility of the occupiers for the provision of alternative accommodation in terms of its temporary/emergency housing programme. The City was also directed to file a report by no later than 30 April 2012 inter alia setting out which of the occupiers were eligible for temporary/emergency accommodation; what accommodation would be provided to the occupiers who qualify; and when such accommodation would be provided. The City did not comply with any of these provisions of the order of 29 February 2012 nor did it explain its failure to do so.

[5] In the result Changing Tides re-enrolled the eviction application for 14 June 2012. It came before Claassen J. The City applied for a postponement. Claassen J described the reason for the postponement as ‘. . . that the City requires an opportunity to examine each and every one of the occupants in order to classify them in accordance with certain undisclosed categories, before the City is willing to supply alternative accommodation’. Claassen J refused the postponement and after hearing counsel for Changing Tides, the occupiers and the City in respect of the eviction application, issued an order in terms of which the occupiers were ordered to vacate the property by no later than 15 February 2013, failing which the sheriff was authorised to evict the occupiers. The City was directed to provide the occupiers (listed in an annexure to the order) with temporary shelter by no later than 30 January 2013, if they were still resident on the property. It was also directed to file a report by no later than 31 October 2012, setting out the nature and location of the temporary shelter to be provided to the occupiers. The order was no doubt informed by the decision of the Constitutional Court in Blue Moonlight Properties¹ handed down on 1 December 2011.

[6] Save for minor matters not relevant here, the City consented to the order of Claassen J. It nevertheless failed to comply therewith. It filed a report only on 20 November 2012, which did not set out the nature and location of the temporary shelter to be provided to the occupiers. The report stated that it would be impossible for the City to accommodate the occupiers in terms of the order of Claassen J due to the lack of availability of buildings and financial and other resources. It concluded with the unhelpful suggestion that if the court is of the view that it is not just and equitable to order an eviction due to the lack of availability of temporary shelter then the court must not order the eviction of the occupiers. But if the court has already ordered the occupiers to vacate the property then an appropriate date for the eviction of the occupiers and allocation of temporary shelter must be determined. Self-evidently the City did not comply with the obligation to provide temporary shelter to the occupiers by 30 January 2013.

[7] In the meantime the occupiers faced eviction by 15 February 2013. They attempted to engage with the City in this regard, to no avail. On 19 December 2012 the occupiers launched an application citing the City, the functionaries and Changing Tides (the enforcement application). In essence the occupiers claimed an order declaring that the functionaries are obliged to take all the steps necessary to ensure that the City complies with the order of Claassen J, by providing the occupiers with temporary shelter and a mandatory order obliging the functionaries to give effect to the contents of the declarator.

[8] The City and the functionaries filed their answering affidavit in the enforcement application on 4 February 2013. Both the eviction application and the enforcement application came before Lamont J on 6 February 2013. He made an order by agreement between all the parties concerned. In terms of this order the eviction application and the enforcement application were consolidated. Paragraph 4 of this order reaffirmed the order of Claassen J in the following terms:

‘The first respondent (‘the City”) is directed to provide all those whose names appear in the document entitled “List of Residents of Chung Hua Mansions” dated 6 June 2012, annexed to the order granted by Claassen J (“the occupiers”), provided they are still resident at the property and have not voluntarily vacated it, with temporary shelter where they may live secure against eviction in a location as near as possible to the area where the property is situated.’

[9] Paragraph 5 of the order required the City to provide a detailed report in respect of specified matters. It reads:

‘The City is directed by no later than the 20th March 2013 to deliver a report to this court, confirmed on affidavit by an appropriate official of the City, setting out the nature and location of the temporary shelter to be provided to the occupiers. That report must identify the building or buildings where the occupiers will be accommodated and the particular terms as to rent and occupation on which the occupiers will be accommodated, including any house rules or other tenant responsibilities sought to be imposed. The report must specifically deal with the buildings known as Ekuthuleni and Linatex. The report must also contain an undertaking to make the accommodation available by a specified date, giving fully detailed and rational reasons why such date cannot be any earlier. The report must deal specifically with the issue of proximity and explain why the particular location and form of accommodation have been selected. The report must also set out the steps taken between the date of this order and the filing of the report to engage with the occupiers through their legal representatives, or by any other appropriate means.’

[10] It can be accepted that the Ekuthuleni and Linatex buildings were specifically referred to in the order because of what was said in the answering affidavit to the enforcement application, namely that approximately 110 accommodation opportunities were available in Ekuthuleni and that Linatex, which had room for 144 persons, would be available to the City for purposes of providing temporary accommodation. The consolidated application was postponed to 9 April 2013 and the implementation of the eviction order was suspended pending the outcome of the hearing on 9 April 2013.

[11] The order of Lamont J was not complied with. On 20 March 2013 the City filed its report. Despite what was said in the answering affidavit, the report stated that the accommodation in Ekuthuleni and Linatex were allocated to occupiers who were evicted from another building. It stated that it was impossible to accommodate the occupiers ‘in the foreseeable future’. The City therefore sought a further extension for a period of at least nine months to identify a building or buildings to accommodate the occupiers.

[12] On 9 April 2013 the matter came before Satchwell J. She delivered judgment on 3 May 2013, in terms of which the relief claimed in the enforcement application was granted. Satchwell J also directed the City to provide answers to questions posed in the order. The City was ordered to pay the costs of the application on the attorney and client scale. Paragraphs 1, 2 and 3 of the order provide:

‘1. It is declared that the second, third and fourth respondents, in their respective capacities as the Executive Mayor, Municipal Manager and Director of Housing of the City of Johannesburg Metropolitan Municipality (“the City”), are constitutionally and statutorily obliged to take all the necessary steps to ensure that the City complies with paragraph 2 of the court order granted by Claassen J in case no. 2011/20127 on 14^th June 2012 (“the June 2012 court order”) and the court order granted by Lamont J on 6^th February 2013 (“the February 2013 court order”), obliging the City to provide the applicants with temporary shelter where they may live secure against eviction, in a location as near as feasibly possible to 191 Jeppe Street, Johannesburg.

2. The City is directed to provide full and complete answers to the following questions, such answers to be signed by the second, third and fourth respondents personally, and furnished to the applicants and fifth respondent as also this court by 12h00 on Friday 18^th May 2013.

a. Subsequent to the Blue Moonlight order of the Constitutional Court on 1^st December 2011,

i. Has the City of Johannesburg established a specialist task team or unit to plan for implementation housing arrangements for all those whom it is estimated will be evicted as unlawful occupiers, rendered homeless and whom the City has an obligation to accommodate?

ii. The City is required to specify:

1. Which specialist skills such as urban development, town planning, housing, finance, building and other areas of expertise are represented in this unit?

2. Which departments within the City administration are represented within this unit and with which departments does the unit liaise?

3. What budget has been established for such unit?

iii. If no such unit has been established:

1. The City is required to explain in detail why this has not been done.

2. What structure or structures currently implement the housing arrangements required to be implemented in the Blue Moonlight case with reference to the personnel involved, skills available, liaison undertaken, time availed from other duties, management and direction of implementation.

iv. Has the City planned an estimate of the number of persons and the gender and age distribution of persons who will be required to be accommodated over the period 1^st December 2011 to 30 November 2011, 1^st December 2012 to 30^th November 2012, 1^st December 2012 to 30^th December 2013 and for each successive twelve month period until the end of 2016? If the City uses another twelve month period for such estimates, then it should so indicate.

v. Has the City, in accordance with the estimates referred to above:

1. Planned for the number of beds, rooms, buildings and other facilities required over this period?

2. Ascertained the current and prospective availability of land and/or buildings?

3. Budgeted for rentals or purchase of land and buildings and refurbishment and maintenance thereof to achieve provision of temporary accommodation over this period?

4. Arranged financing estimated to be needed over this period. The City is required to identify sources of funding:

a. Dates of applications and sums required from the National Treasury.

b. Dates of applications and sums required from the Gauteng Province.

c. Dates of applications and sums required from the City of Johannesburg.

vi. Which experts prepared these estimates and plans on behalf of the City of Johannesburg and are these plans and estimates continuously updated?

vii. If no such estimates and plans have been prepared, the City is required to explain why this has not been done and on what basis the City is currently attempting to meet its current and future obligations in terms of the Blue Moonlight case.

viii. Has the City identified buildings for rental by the City in order to provide accommodation as required? How many such buildings have been identified? How many beds would be available per building and in total? At what cost are the rentals per building and per bed? How many rental agreements have been negotiated and concluded? How many negotiations are currently underway?

ix. Has the City identified buildings for purchase in order to provide accommodation as required? How many such buildings have been identified? How many beds would be available on a per building and in total? At what cost are the purchase and refurbishment of each building and per bed? How many purchase agreements have been negotiated and concluded? How many negotiations are currently underway?

x. On what date did the City make a written offer to Fifth Respondent in this matter, Changing Tides Properties 74 (Pty) Ltd, to rent the building situate at 191 Jeppe Street, Johannesburg and at what rental and for what period in order to provide accommodation to the occupiers in this matter. On what date did the City make a written offer to Fifth Respondent to purchase the aforesaid building and at what purchase price and on what terms? Over what period did negotiations take place? On what date did the City receive a written response from Fifth Respondent and to what effect?

xi. Has the City identified architects, builders, plumbers, electricians and other persons with expertise who can procure renovations and refurbishments and maintenance of any building rented or purchased to provide accommodation? Has the City taken steps to ensure speedy tender processes or contractual arrangements to ensure temporary accommodation is available on an emergency basis?

3. The second, third and fourth respondents are ordered to take all the administrative and other steps necessary to ensure that the City ─

i) complies, within two months of the date of this order, with its obligations in terms of paragraph 2 of the June 2012 and February 2013 court orders, to provide the applicants with temporary shelter where they may live secure against eviction, in a location as near as feasibly possible to 191 Jeppe Street, Johannesburg.

ii) complies, within one month of the date of this order with its obligations in terms of the June 2012 and February 2013 court orders to deliver a report specifying the nature and location of the temporary shelter to be provided to the applicants. That report must be delivered, under oath, and signed by the second, third and fourth respondents.’

[13] In terms of para 4 of the order, the eviction order of 14 June 2012 was suspended pending compliance with para 2 thereof. The parties before us are ad idem that the reference to para 2 of the order of the court a quo was made per incuriam and should be a reference to para 3 thereof. We were informed from the bar that temporary shelter was indeed subsequently made available to the occupiers and that what remained to be determined was whether the accommodation was constitutionally compliant.

[14] Leave to appeal was granted by this court. The essence of the case of the City and the functionaries on appeal is that paras 1, 2 and 3 of the order of the court a quo were wrongly granted. For convenience I refer to paras 1 and 3 of the order as the mandamus and to para 2 as the reporting order.

The mandamus

[15] The mandamus was of course granted against the functionaries. In the heads of argument the functionaries argued that there was no basis in law for the mandamus. In support of this argument much reliance was placed on the judgment in Nyathi v MEC for Department of Health, Gauteng^..² In court counsel for the City and the functionaries conceded that the mandamus was competent in law. Counsel said that there could be no objection in principle to the mandamus, had the functionaries been cited in the eviction application from the inception.

[16] The concession was clearly correctly made. Nyathi dealt with the constitutionality of s 3 of the State Liability Act 20 of 1957. It was concerned with the execution of money judgments against the State. The court considered the possibility of contempt proceedings against State functionaries in order to obtain payment of a judgment debt. In such proceedings the judgment creditor would have to obtain a mandamus against the relevant State functionary. If the State functionary does not comply with the mandamus he of she could be held in contempt of court. In this context the court held that contempt proceedings are tedious, unlikely to ensure payment, too onerous a burden on and no real remedy for the judgment creditor whose primary concern is payment of the judgment debt. It follows that Nyathi is no authority for the proposition that a mandatory order could not be made against the functionaries.

[17] As is the position with the State, the City can only act through the functionaries that are responsible to perform the specific function or act on its behalf. The judgment of this court in MEC for the Department of Welfare v Kate³ provides direct authority for a mandamus on pain of committal for contempt of court against the responsible functionary. Nugent JA said:⁴

‘It goes without saying that a public functionary who fails to fulfil an obligation that is imposed upon him or her by law is open to proceedings for a mandamus compelling him or her to do so. That remedy lies against the functionary upon whom the statute imposes the obligation, and not against the provincial government. If Jayiya has been construed as meaning that the remedy lies against the political head of the government department, as suggested by the Court below, then that construction is clearly not correct. The remarks that were made in Jayiya related to claims that lie against the State, for which the political head of the relevant department may, for convenience, be cited nominally in terms of s 2 of the State Liability Act 20 of 1957, though it is well established that the government might be cited instead. Moreover, there ought to be no doubt that a public official who is ordered by a court to do or to refrain from doing a particular act, and fails to do so, is liable to be committed for contempt, in accordance with ordinary principles, and there is nothing in Jayiya that suggests the contrary.’

This judgment was endorsed by this court in Meadow Glen Home Owners

Association & others v City of Tshwane Metropolitan Municipality & another.⁵

[18] It is rightly not disputed that the functionaries are the officials of the City responsible for implementation of the orders of Claassen J and Lamont J. The functions and powers of an executive mayor of a municipality are set out in s 56 of the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act). This section indicates that an executive mayor is responsible for the overall planning and oversight of the service delivery of the municipality. In performing the duties of office, the executive mayor must monitor the management of the municipality’s administration⁶ and must oversee the provision of services to communities in the municipality in a sustainable manner.⁷ This makes plain that the executive mayor is ultimately responsible to ensure that the City’s administration complies with its obligations towards residents in terms of a court order.

[19] Section 55 of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) provides that the municipal manager is the head of administration and the accounting officer of a municipality. Subject to the policy directions of the municipal council, the municipal manager is responsible and accountable for the management of the municipality’s administration in accordance with the Systems Act and other legislation applicable to the municipality.⁸ The municipal manager is also responsible and accountable for the management of the provision of services to the local community in a sustainable and equitable manner.⁹ Moreover, as accounting officer he or she is responsible and accountable for all income, expenditure and assets of the municipality and for the discharge of all its liabilities.¹⁰ The municipal manager therefore heads the administration of a municipality and holds its purse. This necessarily means that the city manager has the power and the duty to ensure that the City complies with its obligations in terms of a court order.¹¹

[20] In the founding affidavit the occupiers said that by virtue of powers delegated to him in terms of s 59 of the Systems Act, the director of housing of the City has the specific responsibility for the implementation of the housing programmes and projects in the City’s area of jurisdiction. In the answering affidavits this evidence went unanswered and it must be taken to be admitted.

[21] Before us the contention that the mandamus was wrongly granted, was based on two grounds. The first is that improper procedure was followed in respect of the functionaries and the second that policy considerations rendered a mandatory order inappropriate.

[22] The argument on behalf of the functionaries is that the mandamus could only have been granted had the functionaries been joined in the eviction application from the beginning. I am unable to agree. A party that initiates legal proceedings against a municipality cannot be expected to act on the assumption that if the litigation is successful the municipality will not comply with the order against it. Changing Tides was under no obligation to cite the functionaries in the eviction application. Only when the City failed to comply with the order of Claassen J, did the need arise to look to the functionaries and that was the purpose of the enforcement application. There is no reason to believe that the outcome of the proceedings before Claassen J would have been any different had the functionaries then been parties to the eviction application. This is particularly borne out by the fact that the functionaries were parties to the proceedings before Lamont J and in fact consented to the order set out above. In the final analysis the question is whether the functionaries were prejudiced in a manner that could not be avoided by an appropriate order as to postponement and/or costs. No prejudice to the functionaries was pointed out to us and I find none.

[23] In respect of policy considerations it was argued that the mandamus has the potential of discouraging competent persons from taking up senior positions in local government. It was also said that senior officials in local government should not have to perform their multiple complex tasks with the sword of committal for contempt of court hanging over them and that that could also unduly influence the priority in which functions are performed. With reference to para 35 of Meadow Glen, counsel argued that on-going oversight by the court of the implementation of its orders was a preferable alternative to the ‘blunt instrument’ of committal for contempt of court. He provided a written proposal indicating how such post-order supervision by the court could take place. As I understand it, what is envisaged by the proposal is a series of ‘post-trial conferences’ presided over by a judge specially allocated to oversee the implementation of the order, followed, in the event of that being unsuccessful, by ‘pre-contempt conferences’ before the same judge. On the view that I take of the matter, it is not necessary to consider the practicality or appropriateness of such proposal.

[24] This submission must be considered in the light of two factors. First, the occupiers did not claim an order that the functionaries be committed for contempt of court. They obtained an order that obliges the functionaries to fulfil their own statutory obligations to take the steps necessary to ensure that the City provides temporary shelter to the occupiers. The functionaries are not required to provide the shelter themselves. Contempt of court is committed when a person wilfully and mala fide disobeys an order binding on him or her. If the functionaries address the provision of temporary shelter to the occupiers diligently and in good faith, they would not be guilty of contempt of court even if their efforts prove to be unsuccessful. Secondly, on appeal the test is not whether a possible alternative remedy was available, but whether this court can be convinced that the court a quo erred in granting the relief claimed before it.

[25] In my view, however, the decisive consideration is the principle of public accountability. It is a founding value of the Constitution¹² and central to our constitutional culture.¹³ In terms of s 152(1)(a) of the Constitution the objects of local government include to provide accountable government for local communities. Section 6(1) of the Systems Act provides that the municipality’s administration is governed by the democratic values and principles embodied in s 195(1) of the Constitution. Section 195(1)(f) of the Constitution specifically states that public administration must be accountable. In terms of s 6(2)(b) of the Systems Act the administration of a municipality must facilitate a culture of public service and accountability amongst staff. Constitutional accountability may be appropriately secured through the variety of orders that the courts are capable of making, including a mandamus.¹⁴

[26] By 9 April 2013 the City had for a period of nearly a year consistently and without proper explanation failed to comply with court orders that it had consented to. The functionaries are statutorily obliged to see to the implementation of the orders made against the City. Satchwell J correctly concluded that the time had come for the functionaries to be held accountable in terms of the Constitution. In my view the appeal against the mandamus must fail.

The reporting order

[27] The reporting order was made mero motu. It was not supported with any enthusiasm before us by any of the respondents. The implementation of the eviction order was made subject to the provision of temporary shelter to the occupiers by the City. The City had at all times accepted that it was obliged to provide the occupiers with temporary shelter. Therefore, when the matter came before Satchwell J, only the nature and location of the temporary shelter to be provided to the occupiers remained in issue between the City, the occupiers and Changing Tides. Paragraph 3(ii) of the order of the court a quo required a report as to exactly that. Nevertheless the reporting order obliges the City to ‘provide full and complete answers’ to a wide range of detailed questions pertaining to the historic, current and future performance of the City’s general obligation to provide accommodation to evictees. What is more, in terms of para 32 of the judgment the answers had to be provided irrespective of whether the temporary shelter was in fact provided in terms of para 3 of the order. The reporting order transcends the issues before the court a quo to such an extent that it cannot be countenanced.

[28] Objectively the reporting order conveys an intention to give directions to the City in respect of what is required to comply with its constitutional obligations to provide temporary accommodation to homeless persons in general. The questions require the City to answer to the notions of the court as to the manner in which the obligations could or should be complied with. I agree with counsel for the City that the reporting order infringes the principle of separation of powers and for that reason too, cannot stand.¹⁵

[29] It follows that the appeal succeeds only to the extent that para 2 of the order of the court a quo is set aside. In this event the occupiers and Changing Tides asked only for a further order that the appellants pay the costs of appeal. The reporting order was of course not dealt with in the papers and attracted limited attention in argument on appeal. There is no doubt that the appeal would have proceeded even if the respondents had abandoned reliance on the reporting order. I do not consider that the setting aside of the reporting order warrants any costs order in favour of the appellants.

[30] The following order is made:

1 The appeal succeeds only to the extent that para 2 of the order of the court a quo is set aside.

2 The appellants are ordered to pay the costs of the appeal, including the costs of two counsel where so employed.

_______________________

C H G VAN DER MERWE

ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellants: A Dodson SC (with him I B Currie)

Instructed by:

Kunene Ramapala Botha Law Firm,

Sandton

Claude Reid Inc, Bloemfontein

For First to 182^nd Respondent: P Kennedy SC (with him S Wilson)

Instructed by:

Socio-Economic Rights Institute of South

Africa/SERI Law Clinic, Johannesburg

Webbers, Bloemfontein

For 183^rd Respondent: S Grobler

Instructed by:

Esthè Muller Inc, Three Rivers

Kramer Weihmann Joubert, Bloemfontein