Cape Town - They complained of poor workmanship, refused to pay instalments and were then hauled to court for eviction - but a group of Cape Flats homeowners have emerged the victors in the legal struggle.
In a Western Cape High Court judgment handed down this week, applications to have five households evicted were effectively dismissed.
This comes after the Cape Town Community Housing Company secured a Wynberg Magistrate’s Court order in September 2011, ordering the residents to vacate the properties.
They appealed and the matter came before judges Daniel Dlodlo and Elize Steyn in May.
The housing company, launched in 1999 as a joint venture between the city council and the National Housing Finance Corporation, built about 2 400 houses in several areas, including Mitchells Plain, Philippi, Newfields and Hanover Park.
People bought the homes, paying in monthly instalments; however, they have in the past complained that the houses were poorly built.
According to Judge Steyn’s written judgment, the legal team for the households - attorney Lloyd Padayachi, and two advocates, Gavin Woodland SC, and Andre Smalberger, all of whom acted pro bono - argued “convincingly” that the housing company had no right to the receipt of any payments because it had failed to comply with a provision in the Alienation of Land Act that involves the recording of the instalment purchase agreements by a registrar.
Their clients, therefore, could not be in arrears as there was no obligation in law for them to pay their instalments.
The housing company, however, believed that these specific instalment purchase agreements were exempt from the provision because it was a functionary of the state at the time they were concluded.
Advocate Con Joubert, acting for the company, argued that the latter was not a private company that made a profit and declared dividends, but rather an entity that acted as a functionary to provide public housing.
According to Judge Steyn, the primary aspect for the court’s determination was the ambit and meaning of the word “state” in the context of the Alienation of Land Act.
She found that it referred to closed categories of entities and that the word couldn’t be widened to include organs of state, and “definitely not private companies such as the respondent (the housing company) in this matter”.
This was regardless of whether its purpose was to generate profit, as well as the interest certain organs of state had in it.
“The respondent was an independent contractor performing certain governmental obligations, including the provision of housing,” the judgment read.
“There is no evidence before the court that the respondent forms part of government at any level or is controlled by government or that it should be regarded as an organ of state.”
She found that on its own factual averments, the entity was in fact a private company.