VAN DER WESTHUIZEN J
[40] It could reasonably be expected that when land is purchased for commercial
purposes the owner, who is aware of the presence of occupiers over a long time, must
consider the possibility of having to endure the occupation for some time. Of course a
property owner cannot be expected to provide free housing for the homeless on its
property for an indefinite period. But in certain circumstances an owner may have to
be somewhat patient, and accept that the right to occupation may be temporarily
restricted, as Blue Moonlight‘s situation in this case has already illustrated. An
owner‘s right to use and enjoy property at common law can be limited in the process
of the justice and equity enquiry mandated by PIE.
[41] In order to conclude whether eviction by a particular date would in the
circumstances of this case be just and equitable, it is mandatory to consider ―whether
land has been made available or can reasonably be made available‖.41 The City‘s
obligations are material to this determination.
The City’s obligations; non-joinder of the other spheres of government
[42] The duty regarding housing in section 26 of the Constitution falls on all three
spheres of government – local, provincial and national – which are obliged to cooperate.42 In Grootboom this Court made it clear that ―a co-ordinated State housing
program must be a comprehensive one determined by all three spheres of government
41
Section 4(7) of PIE above n 26.
42
See section 40(1) of the Constitution above n 16.
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