Living Africa One (Pty) Ltd v Ekurhuleni Metropolitan Municipality and Another (A5019/2022) [2023] ZAGPJHC 897; [2023] 4 All SA 111 (GJ); 2023 (6) SA 551 (GJ) (11 August 2023)

Between October and December 2013, representatives of the appellant met with the municipality to inform them of their intention to develop the property and proposed the relocation of the Angelo Informal Settlement. The municipality did not respond, prompting the appellant to apply to the Gauteng Local Division of the High Court for an eviction order. On 1 August 2014, Sutherland J granted an eviction order against the illegal occupants, requiring them to vacate the property by 1 February 2015. The municipality was ordered to provide temporary emergency accommodation for those who needed it by the same date.

The municipality did not comply with the order by the deadline, leading the appellant to seek further relief. On 6 October 2015, Mashile J confirmed the municipality's obligation to comply with Sutherland J's order and declared that the municipality's failure infringed the appellant's right not to be arbitrarily deprived of its property under section 25(1) of the Constitution. Mashile J ordered the municipality to undertake a survey of the occupiers and report on its plan of action to comply with Sutherland J's order.

In December 2015, the municipality applied for funding from the National Government for the relocation but was unsuccessful. In 2017, the municipality purchased Germiston Extension 46 from the appellant for R12.1 million to relocate the unlawful occupiers. The municipality began developing the land but faced a non-compliance notice from the Gauteng Department of Agriculture and Rural Development and an interdict from adjacent businesses, halting the relocation process.

In early 2018, the municipality decided to relocate the unlawful occupiers to Comet Extension 17, with a projected timeline extending to February 2020.
On 4 July 2019, the appellant brought an urgent application to compel the municipality to comply with the previous court orders. On 19 September 2019, Siwendu J ordered the municipality to ensure the relocation by 30 September 2020. The municipality's subsequent reports indicated that compliance would take several more years, with a final relocation anticipated no earlier than 2035.

The court a quo found that the municipality had made genuine efforts to comply with the court orders and that the delays were not wilful or in bad faith.
The appellant appealed, arguing that the municipality's conduct showed wilfulness and mala fides, and sought constitutional damages for the infringement of its rights under sections 25 and 34 of the Constitution.

The appeal focuses on whether the municipality's failure to comply with the court orders was wilful and in bad faith, and whether the appellant is entitled to constitutional damages for the alleged infringement of its rights.

The court found that the respondents (the municipality and its municipal manager) were not in contempt of court because they had made genuine efforts to comply with the court orders. The court held that the delays in compliance were not wilful or in bad faith but were due to various logistical, financial, and administrative challenges. The court emphasized that non-compliance on its own, provided it is bona fide, does not constitute contempt.

 Infringement of Constitutional Rights:
The court held that the municipality's failure to provide temporary emergency accommodation for the unlawful occupiers, resulting in the continued illegal occupation of the appellant's property, constituted an unlawful infringement of the appellant's rights under section 25(1) (right not to be arbitrarily deprived of property) and section 34 (right to have disputes resolved by a court) of the Constitution. The court found that the appellant could not be expected to provide free housing for the unlawful occupiers indefinitely and that the municipality's failure to act had effectively deprived the appellant of its property rights.

 Just and Equitable Relief:
The court determined that the appropriate relief for the infringement of the appellant's constitutional rights was an award of constitutional damages. The court held that such damages were necessary to compensate the appellant for the loss of use and enjoyment of its property and to vindicate its constitutional rights. The court ordered that the compensation be calculated in terms of section 12(1) of the Expropriation Act.

In essence, the core legal principles are that genuine efforts to comply with court orders, even if unsuccessful, do not constitute contempt of court, and that the failure of a municipality to provide alternative accommodation, resulting in the prolonged illegal occupation of private property, can constitute an unlawful deprivation of property rights, warranting constitutional damages as just and equitable relief.

 Pheko v Ekhurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC). This case was referenced regarding the principles of civil contempt and the requirements for establishing contempt of court.

 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA). This case was cited to explain the presumption of wilfulness and mala fides in contempt proceedings and the burden on the contemnor to rebut this presumption.

 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State v Zuma and Others [2021] ZACC 18; 2021 (5) SA 327 (CC); 2021 (9) BCLR 992 (CC). This case was referenced to reinforce the principles of establishing contempt of court.

 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited [2017] ZACC 35; 2018 (1) SA 1 (CC); 2017 (11) BCLR 1408 (CC). This case was cited to discuss the requirements for proving contempt and the necessity of establishing wilfulness and mala fides.

 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC). This case was referenced to discuss the balance between property rights and the right to housing, and the obligations of municipalities in providing alternative accommodation.

 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd [2004] ZASCA 47; 2004 (6) SA 40 (SCA); 2004 (8) BCLR 821 (SCA). This case was cited to support the argument that the State's failure to provide alternative housing can constitute a breach of property rights and justify an award of constitutional damages.

 Thubakgale and Others v Ekhurhuleni Metropolitan Municipality and Others [2021] ZACC 45; 2022 (8) BCLR 985 (CC). This case was referenced to discuss the principles of awarding constitutional damages and the necessity of such damages being the most appropriate remedy.

 Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others [2021] ZACC 37; 2023 (3) SA 329 (CC); 2022 (1) BCLR 46 (CC). This case was cited to emphasize that constitutional damages should only be awarded if they are the most appropriate remedy available to vindicate constitutional rights.