CASE No.: .../2000
In the matter between:-
MINISTER OF PUBLIC WORKS First Applicant
AHANANG CC Second Applicant
GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA Third Applicant
PREMIER OF THE GAUTENG PROVINCE Fourth Applicant
and
KYALAMI RIDGE ENVIRONMENTAL ASSOCIATION
First Respondent
CHERYL EILEEN LOOTS Second Respondent
NOTICE OF APPLICATION FOR LEAVE TO APPEAL DIRECTLY TO THE CONSTITUTIONAL COURT IN TERMS OF RULE 18
TAKE NOTICE that the First and Third Applicants (“the Applicants”) apply for an order -
(1) granting the Applicants leave to appeal directly to this Honourable Court against the whole of the judgment and order given by His Lordship Mr. Justice Daniels in
(2) directing that the costs of this application for leave to appeal be costs in the cause of the appeal pursuant to the order referred to in paragraph (a) above.
TAKE FURTHER NOTICE that the Applicants will rely on the accompanying affidavit of LOUIS KUYLER in support of this application.
TAKE FURTHER NOTICE -
(a) that you may within 10 days from the date upon which this notice is lodged, to respond in writing, as provided in Rule 18 of this Honourable Court’s Rules, indicating whether or not you consent to leave to appeal being given and, if the application is opposed, the grounds for such opposition;
(b) that, if no such notification is given, the Registrar will be requested to place the matter before the President to be dealt with as provided in Rule 18(10);
(c) that the Applicants have appointed the State Attorney, Fedsure Forum Building, Fourth Floor South Tower, Van der Walt street, Pretoria, being an address agreed upon between the parties, at which they will accept notice and service of all process in these proceedings.
KINDLY place this matter before the President to be dealt with in terms of Rule 18(10) accordingly.
DATED at PRETORIA on this ... day of November 2000.
...
STATE ATTORNEY RESPONDENTS’ ATTORNEY Fedsure Forum Building Fourth Floor South Tower Van der Walt Street PRETORIA
4116/2000/A2 Dr. L Kuyler
Tel. 310 2721
TO: The Registrar of the above Honourable Court BRAAMFONTEIN
AND TO: KERN AND PARTNERS APPLICANTS’ ATTORNEYS c/o Brazington Sossen 73 George Storrar Drive Groenkloof
PRETORIA
Ref: Mr. B W Brazington
CASE No.: .../2000
In the matter between:-
MINISTER OF PUBLIC WORKS First Applicant
AHANANG CC Second Applicant
GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA Third Applicant
PREMIER OF THE GAUTENG PROVINCE Fourth Applicant
and
KYALAMI RIDGE ENVIRONMENTAL ASSOCIATION
First Respondent
CHERYL EILEEN LOOTS Second Respondent
AFFIDAVIT IN SUPPORT OF APPLICATION TO APPEAL DIRECTLY TO THE CONSTITUTIONAL COURT IN TERMS OF RULE 18
I, the undersigned -
LOUIS KUYLER,
do hereby make oath and say as follows:-
2) a) I am -
(1) an attorney employed in the Office of the State Attorney, Pretoria, where I hold the post of Senior Assistant State Attorney, and the attorney of record in this matter;
(2) duly authorized to make this affidavit on behalf of the First and Third Applicants (“the Applicants”) and to bring this application for leave to appeal directly to this Honourable Court.
b) The facts set out in this statement fall, except where expressly indicated otherwise, within my personal knowledge and are true and correct.
3)
INTRODUCTION
a) The Respondents, cited in the Court a quo as the First and Second Applicants, on 4 July 2000 launched an urgent application against the Applicants, cited in the Court a quo as the First to the Fourth Respondents.
b) I will in this affidavit refer, for the sake of convenience, to the parties as they were referred to in the Court a quo.
c) In terms of the interim order granted on 4 July 2000 the Respondents were interdicted from -
(1) proceeding with the establishment of an informal settlement camp on the land on which Leeuwkop Prison is situated;
(2) proceedings with the construction or erection of temporary or permanent dwelling units for purposes of the establishment of such a settlement;
and
(3) permitting any person to come onto the property for purposes of settling there.
d) On 26 September 2000 Daniels J, for the reasons advanced in his judgment (of which a copy, marked ANNEXURE LK 1, is annexed hereto) granted, in addition to an order of costs, an order -
(1) reviewing and setting aside the decision of the First or Third Respondent to establish an informal residential settlement on the land on which Leeukop Prison is situated;
(2) ordering the First or Third Respondent to reconsider the aforesaid decision after proper consultation with the residents of Kyalami Ridge and, in particular, with the Applicants and after having heard representations on their behalf and after having given due consideration to the environmental impact of the establishment of such residential settlement as well as all other relevant factors to be taken into account for purposes of such decision, including the compliance with the provisions of such laws as may be applicable.
e) The purpose of this application is to obtain the leave of this Honourable Court in terms of Rule 18(7) to appeal directly to this Honourable Court against the judgment and orders described in paragraph 2.4 above.
f) On 14 November 2000 an application (of which a copy, marked ANNEXURE LK 2, is annexed hereto) was made in terms of Rule 18(2) to the Court a quo for a certificate envisaged in terms of that Rule in consequence of which the learned Judge granted a positive certificate as envisaged in Rule 18(6) (of which a copy, marked ANNEXURE LK 3, is annexed hereto).
4)
RELEVANT FACTS OF THE MATTER
a) It was common cause between the parties that, amongst other communities in
South Africa, the houses of one community who lived along the banks of the Jukskei River where the river passes through the township of Alexandra were washed away when the River came down in flood during the disastrous floods which seriously affected the Southern African region during or about March 2000.
b) As a result of the flood disaster the President established an Inter-ministerial Emergency Reconstruction Committee consisting of various Cabinet Ministers.
i) For this purpose an amount of R557 million has been made available by Cabinet.
ii) The envisaged reconstruction entailed, in addition to emergency relief on rescue operations and long term re-establishment of permanent housing and infrastructure to replace structures destroyed by the floods, certain medium term reconstruction.
iii) The medium term reconstruction involved the temporary settlement of affected communities left homeless by the floods under circumstances where such persons can be housed in a manner which would prevent a serious health risk to those people, such as, the establishment of temporary transit camps while permanent housing is being established to replace the housing destroyed by the floods.
c) The persons who fell victim of the floods along the Jukskei River at Alexandra were, after having been rescued, housed in tents at Marlboro and in a hall at the Rhema Church where they were housed in appalling conditions without sufficient water and sanitation.
d) In order to alleviate the dire need of these persons, the Inter-ministerial Emergency Reconstruction Committee in this process through its Command Centre with the assistance of the Department of Public Works identified the land in question for the establishment of a temporary transit camp.
e) It would appear from the founding papers to have been the Applicants’
contention that the decision of the First or Third Respondent (“the Respondents”) is to be reviewed and set aside or declared to be unlawful on the grounds thereof that the activities taken by the Respondents are unlawful in that (in the order the contentions are raised in the Applicants’ founding and replying papers) -
(1) the Respondents failed to apply and adhere to the audi alteram partem principle and otherwise infringed the Applicants’ rights guaranteed in sections 24 and 33 of the Constitution; and
(2) the Respondents failed to apply their minds to the matter;
(3) such activities are in conflict or not in accordance with the provisions of -
(a) as specified in the founding affidavit -
(aa) the National Environment Management Act, 1998;
(bb) the Environmental Conservation Act, 1989; and
(b) as specified in the replying affidavits -
(aa) the Development Facilitation Act, 1995;
(bb) the Less Formal Township Establishment Act, 1991;
(cc) “the relevant Ordinances and Acts which regulate township establishment, more specifically Town Planning Schemes”;
(dd) the Civil Protection Act, 1977;
(ee) the Civil Defence Ordinance, 1977;
(ff) the National Building Regulations and Building Standards Act, 1977;
(4) such activities were performed “outside a statutory framework”;
(5) the settlement is reasonably likely to cause harm or a nuisance to the occupiers of land in the surrounding area.
f) It was briefly the Respondents’ contention on these questions -
(1) that the Respondents acted directly in compliance with Government’s constitutional directive imposed upon it by sections 26 and 27 of the Constitution, and have indeed shown that, in so doing, they have indeed properly applied their minds to the matter;
(2) that, by virtue of the temporary nature of the camp, the Respondents were not compelled to comply with any of the provisions referred to by the Applicants.
5)
APPLICATION FOR LEAVE TO APPEAL DIRECTLY TO THIS HONOURABLE COURT IN TERMS OF RULE 18
a) It is respectfully submitted that the learned Judge erred in the following respects which raise constitutional issues.
b) The findings of fact and law in the judgment that are disputed
i) The Court a quo accepted, without deciding, that for purposes of its judgment the laws referred to by the Applicants do not apply where there is no change in the land use and the land is used for purposes of providing temporary shelter in the circumstances envisaged by the Applicants.
Judgment, Annexure LK 1, p. 5, line 28 to p. 6, line 2
ii) The Court a quo then continued and held -
(1) that what has to be determined is whether “we are dealing with a temporary transit camp, a temporary measure lasting no more than approximately 6 months”;
Judgment, Annexure LK 1, p. 6, lines 2 to 4
(2) that the housing intended to be provided “is more in the nature of medium term housing aimed at providing not temporary but indefinite shelter until such time as proper accommodation is provided elsewhere”;
Judgment, Annexure LK 1, p. 6, lines 24 to 27
(3) that “(a)lthough it is true that the housing as such does not appear in itself to be permanent structures, it is much more permanent than the cardboard, plastic and corrugated iron shacks which provide permanent shelter for those squatting informally”;
Judgment, Annexure LK 1, p. 7, line 28 to p. 8, line 2
(4) that the camp “is not a temporary transit camp, this is a transit camp for an indefinite period ranging from anything between 6 to twelve months to almost any figure one can think of”;
Judgment, Annexure LK 1, p. 8, line 28 to p. 9, line 2
(5) that “(a)t best for the respondents ... this is a development for an indefinite period which on the probabilities will be utilized on a permanent ongoing basis, either by the proposed occupants or by the government in future”;
Judgment, Annexure LK 1, p. 12, lines 25 to 29
(6) that “(h)aving regard to the fact that the decision to establish the camp settlement cannot be validly implemented without complying with the various statutes, laws, bye-laws and
regulations and it being the respondents’ attitude that it is entitled to do so, that decision is clearly wrong and should be set aside”.
Judgment, Annexure LK 1, p. 13, lines 13 to 18
iii) If regard is had to paragraph (b) of the order granted, it, furthermore, appears that the Court a quo also held, albeit, perhaps, by implication -
(1) that the actions of the Respondents constitute “administrative actions” which are capable of being reviewed and that the Respondents were required to consult with, and to consider representations made by, the residents of Kyalami Ridge on, inter alia, the environmental impact of the establishment of the settlement;
(2) that the right to an environment that is not harmful to health and well-being of the residents of Kyalami Ridge would be infringed by the establishment of the informal residential settlement in question;
(3) that the laws in question apply to the camp which, according to Court a quo’s finding, is a development for an “indefinite period”.
iv) The Respondents, with respect, dispute, for the reasons set out below,
all these findings of fact and law.
c) Grounds of appeal upon which the judgment is disputed
i) These findings of law and fact are, with respect, disputed on the following grounds:-
ii) In the first place the facts averred by the Respondents in the answering affidavit, together with the facts stated in the founding affidavit which are not disputed by the Respondents, do not, with respect, support a finding that the intended settlement camp is not intended to be of a temporary nature, but rather intended to be established for an indefinite period.
(1) It is trite law that in application proceedings the relief claimed is ordinarily considered with reference to the facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent.
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 1984(3) SA 623 (A), 634G
(2) The following allegations and submissions were made in the Applicants’ founding affidavit and conceded by the Respondents in their answering affidavits -
(a) that Mr. Matjila advised that the construction was a
transitional camp to temporarily house people from Alexandra Township whose homes had been washed away;
(b) that Mr. Mashatile stressed that “the development was a transit camp and that it was his duty to ensure that people who will be accommodated there will ultimately be permanently housed in that when the units being constructed were no longer required, they would be dismantled and moved to another site”;
(c) the Respondents themselves refer to the flood victims as
“the temporary residents” which in itself carries at least an acceptance of the temporary nature of the camp.
(3) The following allegations and submissions were, for example, made by the Respondents in their answering affidavits and never challenged by the Applicants as being inaccurate or incorrect, namely -
(a) that the Department of Public Works consented to the use of the property for the purpose of establishing a temporary transitional camp for the flood victims;
(b) that the decision to establish a temporary transit camp and the construction of 200 dwelling houses on the property was taken by the State in the exercise of its rights as owner of the property;
(c) that the provisions of the Environment Conservation Act, 1989, and the National Environmental Management Act, 1998, do not apply to the construction of dwelling houses in the temporary transit camp;
(d) that in so far as the construction of the temporary transition camp may impact upon the right to an environment that is not harmful to the health or well-being contemplated in section 24 of the Constitution, the infringement concerned is justified in view of the pressing need to provide temporary housing for the people who were rendered homeless by the floods;
(e) that the project which formed the subject matter of the application forms part of the medium term reconstruction which involves the temporary settlement of affected communities left homeless by the floods;
(f) that a contract was entered into with the Second
Respondent to establish temporary houses.
(4) In view of the aforegoing, it is respectfully submitted that it was in actual fact common cause between the parties that the camp was intended to be temporary in nature.
iii) In the second place, in so far as this Honourable held that the camp is not a temporary camp, but a camp established for an indefinite period, the Court a quo did not in fact hold that the camp was permanent in nature.
(1) It is submitted that the camp can, with respect, either be temporary or permanent.
(2) The relevant laws can only apply if the camp is permanent in nature.
(3) The finding that the camp is intended to be established for an indefinite period is, with respect, contrary to the direct and undisputed evidence that permanent housing will be made available to the flood victims within a period of 6 to 12 months.
(4) Furthermore, the finding that the development will be utilized on a permanent ongoing basis, either by the proposed occupants or
by the government in future, is, with respect, not supported by any evidence on the papers.
iv) In the third place the Court a quo, with respect, erred in not holding that the Applicants were bound, by virtue of Government’s constitutional directive in terms of sections 26, 27 and 28 of the Constitution, to grant shelter, whether temporary or indefinite, on land belonging to the State to the flood victims concerned without complying with the various relevant laws.
v) In the fourth place the Court a quo, with respect, erred in holding, as is implied in the orders granted, that the Respondents were required to consult with, and to consider representations made by, the residents of Kyalami Ridge.
(1) This finding implies that the Respondents’ actions are administrative actions.
(2) It is respectfully submitted that, in so far as the Respondents decided to provide temporary shelter to the victims on Government’s own property, Government’s actions, through the Respondents, constitute actions performed by it in its capacity as the owner of land like any other owner of private property providing shelter to any other person.
vi) In the fifth place the Court a quo, with respect, erred in holding, as is so implied, that the right to an environment that is not harmful to health and well-being of the residents of Kyalami Ridge can be infringed by the establishment of the informal residential settlement in question.
(1) In this regard the Court a quo failed to take into account the competing fundamental rights vested in the flood victims concerned.
(2) The Court a quo also, with respect, failed to consider whether any possible infringement of the Applicants’ rights in this regard is justified in the circumstances.
d) The constitutional issues raised
i) It is respectfully submitted that the constitutional issues raised in this matter are the questions -
(1) whether the Respondents were bound, by virtue of Government’s constitutional directive in terms of sections 26, 27 and 28 of the Constitution, to grant shelter, whether temporary or indefinite, on land belonging to the State to the flood victims concerned without complying with the various relevant laws
(2) whether, in not discharging its constitutional obligations in terms of sections 26, 27 and 28 of the Constitution, the Respondents would be infringing upon the inherent dignity of the flood victims concerned entrenched in section 10 of the Constitution is thereby infringed;
(3) whether the Respondents were bound, under the circumstances where they intended, in the exercise of their constitutional directive in terms of sections 26, 27 and 28 of the Constitution, to grant shelter, whether temporary or indefinite, to the flood victims concerned on land belonging to the Government, to comply with the provisions of section 33 of the Constitution by affording the residents of Kyalami Ridge an opportunity to be heard;
(4) whether there is a threat to the right to an environment that is not harmful to health and well-being of the residents of Kyalami Ridge by the establishment of the informal residential settlement in question.
ii) These issues are, with respect, issues which fundamentally affect the lives of, particularly, the flood victims concerned and are, furthermore, of particular importance to the development of South African jurisprudence concerning the ambit and extent of the fundamental rights entrenched in sections 24 and 33 of the Constitution, and of governmental obligations
contained in sections 26, 27 and 28 of the Constitution.
iii) It is accordingly submitted that these constitutional issues are issues of substance on which a ruling by the Constitutional Court is desirable.
e) The reasons why the interests of justice require that the First and Third Respondents be permitted to appeal directly to the Constitutional Court
i) It is respectfully submitted that the interests of justice require that the Respondents be allowed to appeal directly to the Constitutional Court for the following reasons:-
ii) In the first place this matter is, with respect, a matter of grave urgency as the flood victims are living under inhuman, appalling and unhygienic conditions in circumstances which, with respect, require a speedy and final resolution of the issues in this matter which, albeit to a certain extent factual in nature, are, as already indicated, primarily of a constitutional nature.
(1) If the matter is to be heard in the ordinary course of events by the Supreme Court of Appeal or a Full Court of this Honourable Court, it might take a considerable period of time before the matter can be finally disposed of.
(2) Even if the matter is heard within a reasonable period by any of these Courts, there is always, the Constitutional Court being the highest Court on all constitutional issues, the possibility of further appeals until the matter is finally pronounced upon by the Constitutional Court.
iii) In the second place the matter is of sufficient complexity and importance in so far as it turns on -
(1) the competing fundamental rights and obligations of the flood victims in terms of sections 26, 27 and 28 of the Constitution and the Respondents’ rights in terms of sections 24 and 33 of the Constitution;
(2) the circumscribing of the Governmental obligations under the circumstances where a natural disaster has given rise to homelessness and a general state of desperation in a situation where Government has the available resources to discharge its obligations;
(3) the question whether the Government’s constitutional obligations are self-executing.
iv) It will clearly be in the interests of, on the one hand, both the flood victims
and the Government and, on the other hand, the Applicants, that clarity and legal certainty be obtained as soon as possible, and will, therefore, be in the interests of justice.
f) The evidence is, with respect, sufficient to enable the Constitutional Court to deal and dispose of the matter without having to refer the case back to the Court a quo.
g) In view of the aforegoing, there are, it is respectfully submitted, reasonable prospects that the Constitutional Court will reverse or materially alter the judgment if permission to bring this appeal is given.
In the premises the Applicants in this application respectfully pray for the order set out in the Notice of Application.
...
L KUYLER SIGNED and SWORN to before me at Pretoria on this ... of November 2000, the deponent declaring that he/she knows and understands the contents of this statement, that it is true and correct, that he/she has no objection against taking an oath and that he/she considers it binding on his/her conscience and uttered the words:
"I swear that the contents of this statement contain the truth and is correct, so help me God.".
...
