City of Cape Town v Various Occupiers [2024] ZAWCHC 173
EVICTION – Homeless in city – Alternative accommodation – Meaningful engagement – Unlawful occupiers
Impoverished conditions – Terms of just and equitable eviction considered – Interdict not an appropriate mechanism – City met its obligation to meaningfully engage with occupiers – Safe spaces are adequate alternative accommodation – Eviction just and equitable – Occupation unsustainable – Conditions of eviction carefully regulated – Respondents are evicted.
Facts: This case concerns the rights of some of the most vulnerable people in our society, people living on the pavements of downtown Cape Town. The conditions in which they live are deplorable. They live next to busy roads in tents or structures constructed of plastic sheets and cardboard. They are compelled to live their lives in public, with little or no privacy. They struggle for food, for shelter, and for warmth. The applicant, the City of Cape Town, has a duty to these people. It has a duty to remedy their conditions of living, to take reasonable steps to realise their right to housing, and to ensure they can live lives with dignity and privacy. The City owns all the properties. The City emphasizes that the properties are not fit for human habitation.
Application: The City seeks the eviction of people living on seven defined sites in the inner city. They are adjacent to busy roads and therefore unsafe. There is no access to water, sanitation or electricity. The structures, which are either tents, or are made from plastic and cardboard, are unfit for long-term habitation. There are risks to state infrastructure. The Occupiers obstruct pedestrian and vehicular traffic. The conditions are unhealthy and hazardous for the Occupiers themselves. The conduct of the Occupiers affects people living and working in the City. The case raises the following primary questions for determination. Has the City meaningfully engaged with the Occupiers? Are the safe spaces suitable alternative accommodation? Is eviction just and equitable and, if so, on what terms?
Discussion: The City offers all the people it seeks to evict alternative accommodation in “safe spaces” that it has developed in the City centre. The accommodation in the safe spaces is rudimentary. But it is undoubtedly better than the Occupiers’ current accommodation. The City commits to helping those who use its safe spaces to overcome addiction, to find jobs, and to reconnect with their families. Many of the Occupiers struggle with drug or alcohol addiction. Most suffer from chronic illnesses. Some have skills but no jobs. Most make a living doing odd jobs in the City. The Occupiers have different attitudes to the safe spaces. Some of the occupiers are willing to take up the City’s offer. But others are not. They insist that the City has not adequately engaged with them, it presented them with a binary choice, safe spaces or nothing. They want the City to explore alternatives with them, and to find joint solutions. They also argue that the safe spaces are not suitable alternative accommodation. They do not meet the ordinary requirements for temporary accommodation following eviction, and they impose restrictive rules that separate families and restrict freedom.
Findings: While imperfect, the City did meet its obligation to meaningfully engage with the Occupiers. There are four factors that drive that conclusion. The purpose of meaningful engagement is to identify alternatives to eviction for those occupiers. That could include avoiding relocation altogether, or avoiding eviction because the occupiers are willing to accept an offer of alternative accommodation. That is what the City has done through its processes and discussions with the Occupiers. If there had been no further engagement after the City filed this application, it may have been found that there was not sufficient engagement. But there was extensive post-application engagement. The Occupiers’ desire to continue occupying land unlawfully cannot be a reason to refuse eviction. The Occupiers’ occupation is not only unlawful, but also unsustainable. The City has shown that there is no other better, reasonably available option. TRAs (temporary relocation areas) are far from the City centre and are not a realistic solution for the Occupiers. It does not have the funds or the land to build temporary accommodation other than safe spaces in the City Centre. Its decision not to do so has been upheld by the Supreme Court of Appeal. The City has meaningfully engaged, the safe spaces are suitable alternative accommodation, and eviction is just and equitable, but subject to a detailed order to ensure the Occupiers’ rights are fully respected.
Order: The respondents are evicted from properties. The respondents shall vacate the properties by 30 July 2024. The applicant (City) shall provide alternative accommodation in the form of a place at Safe Space to any of the respondents who has informed the City, or at any point prior to eviction informs the City, that they wish to be accommodated at a Safe Space.
BISHOP AJ
~
Jewellery Council v Maharaj [2024] ZALCJHB 236
LABOUR – Dismissal – Gross disrespectful conduct – Altercation with CEO where eight statements made
CEO allegedly threatened – Employee put on short time and salary reduced by 40% while CEO’s salary unchanged – Employee’s position as accountant was critical and demanding and required her to work more than three days a week of short time – Threats to take CEO to CCMA and courts not constituting misconduct – CCMA commissioner found dismissal substantively unfair – What was said during altercation was largely factual and not untrue – Review application dismissed.
Facts: Prior to her dismissal, the employee, Ms Maharaj, had been in the employ of the company for over 13 years as an accountant. In 2021, the employee was served with a letter confirming that short-time will be imposed, that she would work three days a week, and her total remuneration package would be reduced approximately 40%. Some time later, the employee went to the office of Ms Lloyd, the CEO. Whilst in Lloyd’s office, an altercation between the employee and Lloyd ensued. The Jewellery Council dismissed the employee following a finding of guilt by the chairperson of the disciplinary hearing on allegations that the employee was grossly disrespectful towards Lloyd. The alleged gross disrespectful conduct emanated from eight statements allegedly made by the employee. In addition, the employee was dismissed for allegedly threatening Lloyd.
Application: Following her dismissal, the employee referred an unfair dismissal dispute to the CCMA. The commissioner stated that he could not ignore the circumstances that led to the charges against the employee. The alleged threats made by the employee to Lloyd were that she would report her to the board and that she would take her to the CCMA and courts. The commissioner dealt with the alleged misconduct, which was really about the altercation between Lloyd and the employee. He considered the specific allegations and found some of the statements allegedly made by the employee to be factual and that Lloyd was equally guilty insofar as the altercation was concerned. The commissioner issued an arbitration award declaring the dismissal substantively unfair and ordered the employer to pay the employee 8 months’ compensation. Aggrieved by this decision, the employer brought these proceedings to review and set aside the award.
Discussion: The allegation of “raping” the company was denied by the employee. According to Lloyd, the employee used these words to refer to the fact that Lloyd did not take a salary reduction, whilst she was doing nothing. It was not disputed that Lloyd, obviously the highest earning employee, did not take a salary reduction but the employee did. Whilst the use of the word may be regrettable, put in context, the employee was simply stating a fact. Considering the common cause fact that the company was experiencing financial challenges and then imposed a decision to reduce the employee’s salary, the employee simply expressed her views that Lloyd should also take a salary reduction. The allegation that when the employees attended the Jewellex conference, Lloyd sat the whole day on the bar counter drinking wine was not disputed by Lloyd. In fact, she conceded to this version. When this was put to her, Lloyd responded “so what” and said that it was part of her job. The “threats” to take Lloyd to the CCMA and the courts do not constitute misconduct.
Findings: Lloyd’s conduct, from placing the employee on short-time despite the workload, reducing her salary and sending emails to the employee on days she was not supposed to be working appeared to have been calculated to frustrate the employee. The evidence presented at arbitration proceedings established that the company was experiencing financial challenges, the employee was the only one affected by short-time and a 40% salary reduction, her position as an accountant was critical to the company, was demanding and required her to work more than the three days a week (as she continued to do), Lloyd did not take a salary cut, the company wasted over R2,5 million on a marketing campaign that had no benefit to it, Lloyd used to sit and drink wine the whole day when they attended the Jewellex conference, and Lloyd once lost a banking dongle and the employee threatened to report her to the board. Therefore, whatever was said during the altercation was largely factual and not untrue. Accordingly, the review grounds on the merit of the dismissal are weak and stand to be dismissed.
Order: The review application is dismissed. Paragraphs 30 and 32 of the award are replaced to correct the amount of compensation.
MAKHURA J
~
City of Tshwane Municipality v Glofurn (Pty) Ltd [2024] ZASCA 101
MUNICIPALITY – Electricity – Credit control measures
Customer obtaining interdict when city threatened to disconnect electricity – Dispute lodged in terms of section 102 remained unresolved – Customer had reasonable ground for expectation of reduced amount – This should have been investigated by City – Customer established clear right to have dispute investigated before City was entitled to disconnect electricity supply – High Court correctly found that customer had satisfied requirements of interdict – Appeal dismissed – Local Government: Municipal Systems Act 32 of 2000, s 102(2).
Facts: The dispute between the City and Glofurn relates to two accounts for electricity. One is a post-paid account, and the other is a pre-paid account. Although Glofurn did not receive any invoices from the City since the closure of the old account number, it continued to make average payments to the old account and during 2022 the old account was in credit in the amount of R400,000. On the other hand, the City continued to bill Glofurn using the new account. The City issued an invoice reflecting that Glofurn was in arrears in the amount of R766,457.81. Glofurn disputed that it was in arrears and lodged a formal dispute in terms of section 95(f) read with section 102(2) of the Local Government: Municipal Systems Act 32 of 2000. As the City threatened to cut off its electricity, Glofurn launched an urgent application to the High Court where it sought an order interdicting the City from implementing its debt collection and credit control measures, pending the determination of the dispute with the City.
Appeal: The High Court granted the interdictory relief in favour of Glofurn, together with a costs order. This appeal concerns whether the City was entitled to implement credit control measures against Glofurn by threatening to disconnect the electricity supply to its premises. The key issue is whether Glofurn’s dispute lodged under section 102(2) of the Systems Act remained unresolved, thereby precluding the City from implementing such measures.
Discussion: The supply of electricity is by agreement between the consumer and the municipality and the consumer is liable for the electricity consumed. In the event that the consumer fails to pay for such services, the municipality has a right to disconnect and suspend the supply. Glofurn acknowledged in its founding affidavit that, as a rule, the City was entitled to implement debt collection and credit control measures where there are arrears in any account. The City’s Credit Control and Debt Policy prescribes how consumers can lodge a dispute with the City, in clause 6, and in clause 6.2 makes provision for an appeal. As the aggrieved consumer, Glofurn was entitled to note an appeal in terms of clause 6.2 of the policy within a period of 21 days after receipt of the City’s decision. The dispute lodged in terms of section 102 remained unresolved. Glofurn had satisfied the jurisdictional factors in terms of section 102, in that it proved that it had a dispute with the City which remained unresolved.
Findings: An investigation should have been done by the City before dismissing the issues raised by Glofurn. Glofurn was not even afforded time to contemplate their next move before a threat to disconnect electricity was communicated to them. However, as correctly advanced by Glofurn, section 102(2) of the Systems Act proscribes the implementation of such measures where a dispute exists between the consumer and the municipality. The City’s argument was that even if the amount paid in the old account was transferred into the new account, there was still a deficit. Glofurn’s counter submission, amongst others, was that as early as 2022 it had installed a solar system on its premises. It had an expectation of a reduced amount due to the City. This was a reasonable ground, which should have been investigated by the City. Accordingly, Glofurn had in all respects established a clear right to have the dispute investigated before the City was entitled to disconnect the electricity supply. The High Court correctly found that Glofurn had satisfied the requirements of an interdict.
Order: The appeal is dismissed with costs, including costs of two counsel where so employed.
MBATHA JA (MATOJANE JA, SMITH AJA and BLOEM AJA concurring)
TOLMAY AJA from para [29]
~
ABOUT SPARTAN CASE LAW
The ultimate case law service, curated by experts in law reports.
- 14 recent cases summarized and delivered each morning at 6am in an interactive online experience.
- The latest legal news, articles and updates.
- Online case index with intuitive search functions and cases categorised under topics and sub-topics.
Find out more at the Spartan Caselaw website:
Spartan Case Law
