IN THE HIGH COURT OF SOUTH AFRICA
 (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 5083/09

in the matter between:

vs

All those adult males and females whose 

the founding affidavit and who reside at 
Bluewaters Site B and C, Lukannon Drive, 

All those persons whose identities are to 
Applicant unknown who are unlawfully 
occupying Bluewaters Site B and C, 

BACKGROUND

[3] Those affected individuals who came to occupy the Bluewaters Site B and C, situated at Lukannon Drive, Strandfontein, Western Cape ('Bluewaters') during September 2008 initially did so with the consent of the Applicant.
[4] Once the emergency situation which had been caused by the xenophobic attacks had abated, the Applicant informed the Respondents that they had to vacate the property. At this stage a number of individuals had already been repatriated or reintegrated into the community, resulting in the consolidation of the safety zone camps into two sites, namely Bluewaters and Harmony Park.

[6] The Respondents refused to vacate Bluewaters based on the fact that they are a particularly vulnerable group and it would be impossible to be reintegrated or resettled. The Applicant submitted that the Respondents refusal has resulted in their unlawful occupation of the property since October
2008.
[7] Before the City of Cape Town brought the application to remove the Respondents, it offered them a resettlement package with the assistance of the UNHCR, taking all reasonable and necessary steps to secure the voluntary vacation of Bluewaters. In terms of the offered package, the City of Cape Town offered to move the particularly vulnerable group to Blikkiesdorp in the Delft area. Respondents refused the resettlement to Blikkiesdorp, claiming that it is not safe there.

[16] The Applicant, NGO's and the UNHCR ultimately offered to help with relocation, but the Respondents refused this gesture. It was accordingly submitted that, although the Respondents had an equal voice in the Stakeholders Forum, they failed to demonstrate a genuine commitment to the finding of solutions to alleviate the extent to which they would be adversely affected once evicted from Bluewaters. The Constitutional Court has recently again emphasised the importance of cooperation:
"It must be understood that the process of engagement will work only if both sides act reasonably and in good faith. The people who might be rendered homeless as a result of an order of eviction must, in their turn, not content themselves with anintransigent attitude or nullify the engagement process by mating non-negotiable, unreasonable demands. "
[17] it was further argued, on behalf of the Applicant, that it would be insufficient for the Respondents merely to assert that they are entitled to remain at the Bluewaters camp merely because the atmosphere at Bluewaters (a foreigners' enclave if one can call it that) is more congenial than the atmosphere found elsewhere and security at that camp provides greater peace of mind than would be enjoyed if living in the open community.
[18] Council for the Respondents however emphasised the particularly vulnerable character of the group of foreigners residing at Bluewaters as an important consideration calling for the Court's attention.

PARTICULARLY VULNERABLE GROUP

"People about to be evicted may be so vulnerable that they may not be able to understand the importance of engagement and may refuse to take part in the process. If this happens, a municipality cannot walk away without more. It must make reasonable efforts to engage and it is only if these reasonable efforts fail that a municipality may proceed without appropriate engagement. It is precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people thatthe engagement process should preferably be managed by careful and sensiiive people on its side. "

[27] The attitude of the Respondents during the negotiation phase, and the ultimate rejection of offers of assistance, leaves the impression that they seek as a right the indefinite continuation of the preferred and special treatment at Bluewaters which they are now receiving.
[28] Although it is true, as submitted on behalf of the Respondents, that the circumstances in which they came to be residing at Bluewaters were not of their own making, they cannot be allowed to manipulate the situation due to their status as particularly vulnerable individuals at the cost of the land owner and the community at large. With due regard to the relevant circumstances in the case, the Court is exercising its discretion in favour of the Applicant, subject to certain requirements that i deem necessary for the eviction to be just and equitable

[29]   The Court accordingly orders that:
1. The respondents vacate the Bluewaters Site B and C owned by the Applicant (hereinafter referred to as "the property"), by no later than 31 March 2010.

3.      The applicant shall:

5. It is recorded that all the respondents have been given the necessary assistance by the applicant to obtain the requisite documentation form the Department of Home Affairs in order to legitimize their continued residence in South Africa. The applicant shall accordingly be obliged to comply with the terms of this Order only in respect of those respondent who are lawfully resident in South Africa.

8. It is specifically recorded that the applicant's financial obligations In respect of the implementation of this Order, (other than in respect of the costs of the TRA accommodation for the vulnerable and their immediate family members as listed in annexure "A" hereto, and the reasonable relocation costs which are also for applicant's account), is which sum shall be disbursed strictly in accordance with the provisions of this order.

10. Should any respondent fail to vacate the property by 31 March 2010, the Sheriff of the Court is authorized summarily to evict that person and to remove any of the materials and/or possessions, which shall be kept in safekeeping by the applicant for a period of 60 (sixty) days, calculated from 1 February 2010, or until access thereto is requested by the lawful owner, whichever is the sooner. In the event of no such request being received within a period of 60 (sixty) days, then the applicant shall be entitled to dispose of the said items, in its sole discretion.
11. No order is made as to costs.