Jajbay+judgement+appeal+verdict+soon,+Russel+Molefe,+City+Press

City Press, 24/02/2007 17:45 - (SA)
=City squatters square up to council=

//Both sides have made strong arguments in the Appeal Court, writes// **Russel Molefe**

AN AIR of dignified calm hovers over the building that houses the Supreme Court of Appeal (SCA) in the city of Bloemfontein.

The city itself, which is the country’s judicial capital and also that of Free State province, is poetically known as “the city of roses” owing to its abundance of these flowers and being host to an annual rose festival.

But roses, an ancient symbol of love and beauty, were absent from the courtroom (which is completely panelled in stinkwood) as the Johannesburg City Council this week engaged in a vociferous legal battle to protect its policy that drives inner-city revitalisation.

In the Johanneburg High Court in February last year, Judge Mohamed Jajbay delivered a judgment that effectively halted the council’s inner-city regeneration programme.

This was after the council applied for the eviction of 300 occupants of six “bad buildings” in the inner city under the National Building Regulations and Building Standards Act (NBRA).

Mohamed found that the council had failed to give adequate priority and resources to people in the inner city who were in desperate need of accommodation.

Basically, the judgment was an indictment of the council’s inner-city regeneration programme which apparently seeks to drive poor people out of the city in favour of capital investments.

In the appeal court this week, Advocate S J du Plessis, for the council, and Advocate Paul Kennedy, for the 300 people, submitted powerful arguments before the full bench of judges.

Du Plessis submitted there were fundamental misdirections in the judgment in that it forged illogical links in the system of rights, thereby leading to invalid constitutional conclusions.

The “invalid constitutional conclusions” included the notions that “inadequate achievement of a good that one is obliged to achieve is a reason to stop seeking to achieve the eradication of an evil that one is obliged and entitled to achieve.”

Du Plessis was driving a point home that the council was within its administrative right to issue notices to the 300 occupants to vacate the buildings in the promotion of a safe and healthy environment.

He pointed out, after a question by one of the judges, that the council had no obligation to find the people evicted alternative accommodation.

This irked Kennedy, representing the 300 people, because the eviction itself without provision of alternative accommodation would render the people homeless.

He conceded that the city authorities may take reasonable steps on safety and health basis, but “cannot just leave people on the streets and parks”.

However, the judges wanted to know from Kennedy if it was a constitutional right for a person to refuse to vacate a dangerous building after being issued with a notice.

The judges also raised a scenario whether authorities have to first issue a notice “for people to vacate the beach in case of a tsunami”.

Kennedy pointed out that an inspection in loco of the six buildings was conducted and it was found that they were not as dangerous as the council had made them to be on paper.

He argued that the need for safety and the need for housing should not be separated.

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act should have been invoked instead of some sections of the NBRA which should be declared unconstitutional, Kennedy argued.

Advocate Geoff Budlender, counsel for the amici curiae, submitted that the SCA, in upholding the Johannesburg High Court judgment, should go further and issue a “structural interdict” against the council.

A structural interdict is an order that requires a respondent to report on what it has and will do to give effect to the mandatory order.

The respondent also has to file papers in relation to that report for the court to determine whether the respondent has complied with its obligations or not.

In the high court judgment, Jajbay found that the city council had failed to draft an emergency housing programme in accordance with Chapter 12 of the Housing Charter and the National Housing Act.

However, Du Plessis, in the SCA, undertook to file an affidavit, as requested by the judges, detailing how far the city council has gone in putting in place an emergency housing programme.

The SCA judgment, which may determine the parameters of development in urban centres, has been reserved.


 * From: http://www.news24.com/City_Press/News/0,7515,186-187_2074561,00.html**

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