Ekurhuleni told to pay developer over illegal land occupation

In an appeal hearing, a full bench of the Gauteng High Court has ordered Ekurhuleni Metro to compensate property developer Living Africa One for its failure to relocate nearly 700 illegal households occupying its land.

The quantum of the compensation is to be calculated according to the Expropriation Act.

Living Africa One had asked the court to hold the municipality and its manager in contempt of court, though this part of the appeal was dismissed.

The case highlights the challenges associated with illegal occupation and the costs this imposes on both developers and municipalities. The ruling should comfort other landowners in a similar predicament, but it also demonstrates the financial and regulatory obstacles confronting municipalities attempting to relocate illegal occupiers.

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It’s been almost a decade since Living Africa One told the municipality it planned to develop the property and proposed that the illegal occupants be relocated to the Angelo Informal Settlement in Ekurhuleni. When this didn’t happen, it approached the Gauteng High Court in 2014 and was granted an eviction order with the condition that the municipality provide temporary emergency accommodation for the illegal occupiers.

That didn’t happen either, so in 2015 the matter went back to court, which confirmed the earlier eviction order, this time with the additional finding that Ekurhuleni’s failure to comply with the 2014 court order infringed the developer’s constitutional property rights.

Land bought

In 2017, the municipality purchased a plot of land known as Germiston Extension 46 for R12.1 million to relocate the occupiers and started clearing the land for resettlement.

Later that year, the Gauteng Department of Agriculture and Rural Development ordered the municipality to cease all work on the land due to environmental non-compliance. Adjacent businesses also protested the resettlement and approached the high court for an interim interdict to stop any structures being erected on the land, partly because the municipality was claimed to be in violation of building laws.

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Ekurhuleni attempted unsuccessfully to have the non-compliance notice withdrawn and then found another plot of land to resettle the illegal occupiers.

The developer was back in court again in July 2019, seeking an urgent application compelling the municipality to comply with the earlier court orders in its favour. Ekurhuleni, which was ordered to submit monthly reports regarding its compliance with the court orders, indicated that compliance would take six to seven years due to the need to find funding, engage with the community and gain approval from organs of state.

No contempt of court

The court found that there was no contempt on the part of the municipality, which had taken serious steps and spent money in its effort to relocate the unlawful occupiers, and “that there was no evidence that this had been done in bad faith”.

Living Africa One had asked the court for a fine of R1 million against the municipality, and a fine of R250 000 against the municipal manager, suspended on condition that the illegal occupiers were relocated within one month of the high court order. It later amended its court papers, asking the court for R3.67 million a month in compensation.

The municipality’s inability to find alternative temporary housing for the illegal occupiers meant that eviction orders could not be carried out.

“The end result is that even though an eviction order was issued as long ago as August 2014 by Sutherland J, and was to be executed by 1 February 2015, the unlawful occupiers effectively still remain in occupation of the appellant’s property, and will in all probability still remain in occupation of that property for an indefinite period, or at least for many more years until the municipality relocates them,” reads the judgment.

How long is long enough?

The developer argued that it had suffered damages despite having an eviction order and asked the court to decide whether it should have to wait until alternative housing could be provided to the illegal occupiers before accessing its land.

This raises the question, “How long is long enough? When does the continued occupation of the land at the instance of the state become an unlawful deprivation?” says the judgment.

“While the position of the unlawful occupiers draws sympathy, it is not the [developer’s] constitutional duty or obligation to provide them with adequate housing, or housing of any kind, on its property. That is the duty of the State in terms of the Constitution.”

The judgment goes on to say that asking the developer to effectively bear the burden of providing free accommodation to the illegal occupiers “while the respondents grope around to find a permanent housing solution is clearly not acceptable”.

Ekurhuleni was ordered to pay the costs of the case and the subsequent appeal.

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