- The Supreme Court of Appeal has rejected Tshwane's appeal against its attempt to expropriate privately owned land occupied by hundreds of residents.
- The judges determined that the municipality's expropriation process was unlawful and could not be used to bypass an existing eviction order.
- Tshwane has one year to finish relocating the residents of Kanana Village.
Hundreds of people living in the Kanana Village informal settlement near Bronkhorstspruit must move after the Supreme Court of Appeal ruled that the City of Tshwane unlawfully tried to expropriate private land to avoid a long-standing court-ordered relocation.
This dispute involves the remaining extent of Portion 34 of the farm Kameelzynkraal 547 JR, owned by Summer Season Trading 63 (Pty) Ltd. The legal battle has lasted over two decades and includes multiple court fights between the municipality, the landowner, and residents who settled there.
Judge DS Molefe, writing for a unanimous court, dismissed the municipality's appeal and largely supported a High Court ruling that rejected Tshwane's attempts to expropriate the property.
How the dispute began
The dispute began in 2003 when Ben Gomeni owned the property. At that time, the land was vacant, and people were invited to settle there. Nearby landowners obtained court orders to stop occupation of the property, but people continued to occupy it despite those orders.
Over the years, the settlement grew and became known as Kanana Village. The municipality allowed the settlement to expand and later provided services like water tanks and bathrooms.
Summer Season Trading 63 bought the property in 2006 and started discussions with the municipality about relocating the residents. Rather than help with relocation, the municipality opposed efforts to evict the residents.
Earlier eviction order
In 2011, Summer Season initiated eviction proceedings against the residents. The High Court decided that the residents were unlawfully occupying the property and ruled that their occupation must end. The court concluded that the rights of the occupiers must give way to the owner's property rights and granted an eviction order in 2013.
At the same time, the court ordered Tshwane to take necessary steps to provide alternative accommodation and relocate the occupiers.
Challenges to that judgment from both the municipality and the occupiers were unsuccessful. Applications for appeals were denied, making the eviction order final and binding.
Tshwane's expropriation attempts
Despite the eviction order, the municipality later sought to expropriate the property. The City claimed it needed the land for public purposes and in the public interest so that residents of Kanana Village could stay and eventually establish a permanent settlement.
Summer Season opposed this move and challenged the legality of the expropriation process. The municipality first issued an expropriation notice in 2015 and later tried to withdraw it. It then issued a second notice in 2018.
The Supreme Court of Appeal ruled that the withdrawal of the 2015 notice was unlawful because it occurred outside the timeline allowed by law and without the consent of the landowner.
Judge Molefe stated, "The withdrawal was therefore invalid, and the City could not rely on it as a lawful basis for any other decision made."
The court also found that the municipality did not use the correct laws when trying to acquire the property for housing purposes.
Court finds expropriation aimed at avoiding relocation
One key issue was whether the municipality was genuinely acting for a lawful public purpose. The court decided that the real goal was to prevent carrying out the existing eviction and relocation order.
Judge Molefe stated, "The true purpose of the expropriation was to delay the relocation of the residents due to the existing eviction order. Such a purpose is unlawful."
The judgment emphasised that powers given by law must be used only for their intended purposes. The court concluded that Tshwane could not use expropriation to avoid a final court order.
Occupiers' arguments rejected
The occupiers argued that many families had lived on the land for years and built homes, businesses, and community facilities.
They requested the court to let them stay permanently, claiming that relocation would disrupt their lives and impact access to jobs, schools, healthcare, and places of worship.
The court acknowledged the difficult situation for the residents but determined that it could not ignore a current and binding eviction order.
Judge Molefe stressed that court orders must be respected and followed. "The law requires that the City and the occupiers comply with court orders," he said.
The court also criticised the municipality's actions throughout the legal process. Judge Molefe noted, "The City violated its constitutional duties by not following the court orders."
Rule of law and housing rights
While recognising South Africa's housing issues, the court stated that constitutional housing rights do not allow unlawful occupiers to stay indefinitely on private land.
Judge Molefe remarked, "While Section 26 of the Constitution guarantees everyone the right to access adequate housing, it does not allow unlawful occupiers to choose where they want to live."
The judgment highlighted the need to balance the rights of vulnerable occupiers with those of lawful property owners. The court found that Summer Season did not ignore the ongoing occupation. Instead, the company engaged with the municipality and sought lawful solutions to the problem.
Final order
The Supreme Court of Appeal rejected the appeal and confirmed that the expropriation process was invalid.
The court modified part of the High Court's order but ultimately directed the City of Tshwane to relocate the occupiers within one year of the judgment. Tshwane was also ordered to cover the costs of the appeal.
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