SCA overturns emergency housing ruling against Drakenstein municipality - TimesLIVE

The Supreme Court of Appeal (SCA) on Thursday set aside a Western Cape high court judgment that found the Drakenstein municipality in breach of its constitutional and statutory obligations to provide emergency housing.

The SCA upheld the municipality’s appeal, dismissing declaratory orders and supervisory requirements imposed on the local authority by the high court.

The SCA found that the high court had wrongly shifted the burden of proof onto the state. The high court had required the municipality to disprove unreasonableness without first requiring the applicants to set out a clear factual basis for their claims.

The appeal arose from eviction proceedings brought by Green Willows Properties 2 in the Drakenstein magistrate’s court against Eric Lolo and his daughter Bernice Fransman, who live on Farm Langkloof Roses in Drakenstein.

In 2006, Lolo registered on the housing waiting list.

Green Willows brought eviction proceedings in 2015 after Lolo’s right to occupy his home was terminated following his retrenchment in 2013.

The eviction proceedings, brought in terms of the Extension of Security of Tenure Act, are still pending in the magistrate’s court.

The municipality was cited in the proceedings as the authority responsible for providing emergency housing to people evicted from their homes.

In its response, the municipality accepted its responsibility to provide housing and presented evidence of its efforts and the difficulties it faced in providing different types of housing in Drakenstein.

The municipality said it could not provide Lolo and Fransman with emergency accommodation at the time and could not say with certainty when accommodation would be available. It said, however, that arrangements could be made to provide such housing.

It explained that about 19,500 people were seeking accommodation in Drakenstein at the time, far exceeding availability. It had created between 400 and 800 formal “housing opportunities” a year with funding received from the Western Cape provincial government.

In response to the municipality’s report in the eviction proceedings, Lolo and Fransman applied to the high court for 10 declaratory orders stating that the municipality had breached its obligations to provide emergency and formal housing to the community, particularly people evicted from farms in the municipal area.

In their high court application, Lolo and Fransman contended that the municipality had no emergency housing policy. They also sought a declarator that the municipality must use its resources to meet its emergency housing obligations instead of relying on allocations from the province.

The municipality argued in both courts that Lolo and Fransman had not made out a proper case for the relief they sought.

The high court granted the orders Lolo and Fransman sought but also granted the municipality leave to appeal to the SCA.

Judge of Appeal Nambitha Dambuza said municipalities were required, as part of their integrated development plans, to set out housing delivery goals and land designation planning obligations under the Housing Act.

She said municipalities cannot escape responsibility for emergency housing by pointing to the roles of provincial and national government.

“With regard to the approach to determination of reasonableness of the measures put in place by a municipality, the basic principle that an applicant in motion proceedings must make out a proper case for the relief he or she seeks must apply,” Dambuza said.

She said the onus on the state was to set out the measures it had put in place to discharge its obligations under the Housing Act.

Dambuza said Lolo and Fransman were unaware when they launched the high court proceedings that the municipality had an emergency housing policy.

“Mr Lolo asserted that the municipality did not have an emergency housing policy. That this was incorrect was brought to the respondents’ attention in the municipality’s answering affidavit.”

Dambuza said the appeal record detailed extensive, documented efforts by the municipality to roll out formal housing and emergency options.

She said the municipality’s housing plans included the Vlakkeland project, a 2,500-unit development designed to include 500 emergency housing opportunities.

The SCA made no costs order against Lolo and Fransman in either court.