Ekurhuleni Metropolitan Municipality v Dada N.O. and Others

The first six respondents were trustees of the Islamic Dawah Movement Trust, which owned a property known as Portion 41 of the Farm Rooikop 140. In November and December 2004, approximately 76 families moved onto the property from a neighbouring informal settlement that had become uninhabitable due to flooding and marshy conditions. In July 2006, the Trust brought an eviction application under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19 of 1998 (PIE), with the Ekurhuleni Municipality joined as a respondent. The occupiers opposed the eviction and brought a counter-application alleging the municipality had failed to comply with its constitutional duty under section 26(2) to progressively realise their right of access to adequate housing. The municipality responded by detailing its statutory framework, strategic plans, and integrated development plans to achieve constitutional objectives in a progressive manner. The matter came before Cassim AJ in the Johannesburg High Court.

• Whether a court can order a municipality to purchase property for housing purposes when such relief was not sought by the parties
• The extent of judicial deference required when reviewing administrative decisions and municipal functions
• The appropriate scope of judicial intervention in enforcing the constitutional right to housing under section 26 of the Constitution
• Whether the judge exceeded his judicial powers by imposing a preconceived solution on the municipality
• The distinction between progressive realisation and immediate realisation of socio-economic rights

The appeal succeeded to the extent that paragraph 1 of the high court order (directing the municipality to purchase the property for R250,000 within 30 days) was set aside. Paragraph 2 (requiring the municipality to provide essential services to occupiers) stood. There was no order as to costs. The eviction application in the main matter remained to be determined by the court of first instance.

A court may not order a municipality to purchase property when such relief was not sought by the parties and is not rationally related to the evidence before the court. Judges must exercise judicial deference to the legitimate and constitutionally-ordained province of administrative agencies, particularly municipalities, by recognizing their expertise in policy matters, according their interpretation of fact and law due respect, and being sensitive to the interests they pursue and the practical and financial constraints under which they operate. Judges are not entitled to inject their personal views into judgments or impose preconceived solutions that usurp the functions and duties of municipalities. Courts must respect the principle of progressive (rather than immediate) realisation of socio-economic rights such as housing under section 26(2) of the Constitution, and must work within the statutory frameworks established by Parliament for implementing constitutional rights. Even when enforcing fundamental rights under section 38 of the Constitution, courts may only grant 'appropriate relief', which must be rationally connected to the evidence and the case presented by the parties.

The court noted that the high court judge may have been correct in concluding that the municipality had not dealt with the problems of the informal settlement with appropriate alacrity, but this did not justify adopting a solution well outside the limits of his judicial powers. The court also observed that the judge appeared to have called for oral evidence either to resolve disputes of fact or to conduct a personal investigation for exercising discretion under section 4(7) of PIE, but the purpose was never clearly defined. The judgment references the concept of 'judicial deference' as explained by Cora Hoexter, emphasizing that such deference consists of judicial willingness to appreciate the legitimate constitutional province of administrative agencies, admit their expertise in policy-laden or polycentric issues, accord their interpretation of fact and law due respect, and be sensitive to the interests pursued by administrative bodies and the practical and financial constraints under which they operate. The court noted that judicial deference is particularly appropriate where the subject matter is very technical or where a court has no particular proficiency.

This case is significant in South African law for reinforcing the principle of judicial deference to administrative decision-making, particularly in relation to municipal functions and the progressive realisation of socio-economic rights. It establishes clear boundaries on judicial intervention in administrative matters, affirming that judges must not usurp the constitutional functions of municipalities or substitute their own views for administrative decisions, even when enforcing constitutional rights. The case serves as an important reminder that courts are constrained by law and cannot make orders that exceed their judicial powers, particularly orders not sought by the parties and not rationally related to the evidence. It reinforces the Constitutional Court's approach in Grootboom and other cases regarding the progressive (rather than immediate) realisation of housing rights under section 26(2) of the Constitution, and confirms that courts must respect the statutory frameworks and procedures established by Parliament for implementing constitutional rights.