City of Johannesburg Metropolitan Municipality and Another v Seale and Another (121/2024) [2025] ZASCA 156 (20 October 2025)

Case Note

The City of Johannesburg Metropolitan Municipality and Another v Seale and Another
[2025] ZASCA 156; Case number 121/2024 (20 October 2025)

Reportability

This judgment has been marked reportable because it clarifies the scope of section 17(2)(f) of the Superior Courts Act 10 of 2013, the circumstances in which the Supreme Court of Appeal may reconsider its own refusal of leave to appeal, and the relationship between preventative interdicts aimed at land-invasion control and the constitutional and statutory protections accorded to unlawful occupiers. The judgment also revisits the long-standing doctrine of functus officio in the context of two conflicting court orders issued on the same day, and it re-affirms the principles governing restoration orders following unlawful evictions. Owing to the frequency of land-invasion litigation and the recurrence of local-authorities’ reliance on old, broadly-worded interdicts, the decision is of wider public and jurisprudential significance.

Cases Cited

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)
West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173
De Villiers and Another NNO v BOE Bank Ltd [2004] 1 All SA 481 (SCA); 2004 (3) SA 459 (SCA)
Naidoo v Naidoo 1948 (3) SA 1178 (W)
Ex Parte Nel 1957 (1) SA 216 (N)
Motsoeneng v South African Broadcasting Corporation SOC Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122
Kayamandi Town Committee v Mkhwaso and Others 1991 (2) SA 630 (C)
Illegal Occupiers of Various Erven, Philippi v Monwood Investment Trust Company (Pty) Ltd and Others [2002] 1 All SA 115 (C)
City of Cape Town v Yawa [2004] 2 All SA 281 (C)
Zulu and Others v eThekwini Municipality and Others 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC)
Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA)
Saskatchewan Labour Relations Board v John East Iron Works Ltd [1949] AC 134 (PC)

Legislation Cited

Superior Courts Act 10 of 2013, especially section 17(2)(f)
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)

Rules of Court Cited

No specific rule of court was referenced in the judgment.

HEADNOTE

Summary

The City of Johannesburg and its MMC for Housing sought reconsideration, under section 17(2)(f) of the Superior Courts Act, of a prior Supreme Court of Appeal order that had dismissed their petition for leave to appeal against a High Court decision which found the City’s demolition of informal structures to be unlawful and ordered extensive restorative relief. Two contradictory dismissal orders had been issued on the same day, raising a concern that the incorrect “special-leave” threshold may have been applied. The Supreme Court of Appeal accepted jurisdiction to reconsider but, after a de novo assessment, concluded that there were no reasonable prospects of success on appeal and no compelling reasons to grant leave.

The Court held that the City’s reliance on a 2017 interdict obtained in default (the Sutherland J order) could not justify the July 2023 demolitions because that order did not authorise evictions, did not bind unidentified current occupiers, and could not override PIE or constitutional protections. The High Court’s restoration and contingent monetary relief were upheld as appropriate and not equivalent to constitutional damages. Consequently, both earlier dismissal orders were set aside and replaced by an order refusing leave to appeal, with costs against the City.

Key Issues

The Court addressed whether the mere existence of two inconsistent orders sufficed to trigger the reconsideration jurisdiction under section 17(2)(f); whether the doctrine of functus officio permitted substitution or correction of an earlier order in the absence of an explanatory judgment; whether a wide preventative interdict obtained against unidentified persons can authorise subsequent demolitions of occupied informal dwellings; and whether the High Court’s restorative order, inclusive of a fallback cash payment, amounted to an impermissible award of constitutional damages at the interim stage.

Held

The Supreme Court of Appeal held that the presence of two conflicting orders amounted to a potential grave failure of justice, thereby activating the discretion to reconsider. Upon reconsideration, it found that the City lacked reasonable prospects of overturning the High Court’s findings because the 2017 order did not sanction evictions or demolitions, and the City’s actions plainly constituted unlawful evictions contrary to PIE and section 26(3) of the Constitution. The restorative relief, including the R1 500 contingency, was confirmed as an incident of restitution rather than damages. Leave to appeal was therefore refused, and costs of both the reconsideration and the petition were awarded against the City.

THE FACTS

In July 2023 officials and security personnel contracted by the City of Johannesburg demolished approximately 292 informal shacks on a portion of Allandale Farm earmarked for low-cost housing. The site had been prone to repeated land invasions, and the City relied on a 22 March 2017 default judgment granted by Sutherland J as authority to conduct what it described as “preventative actions” designed to stem further unlawful occupation. Those actions involved dismantling structures, removing building materials and personal belongings, and preventing would-be occupiers from settling.

The affected individuals, now respondents, launched an urgent two-part application in the Gauteng Division of the High Court, Pretoria. Under Part A they sought immediate declaratory and restorative relief, asserting that the demolitions amounted to unlawful evictions executed without a court order as required by PIE. The City opposed the application, insisting that the Sutherland J order empowered it to destroy unoccupied structures and that no eviction had occurred because the targeted shacks were allegedly vacant when removed.

On 23 August 2023 the High Court declared the City’s conduct unlawful and unconstitutional, ordered restoration of the demolished shelters or, failing that, payment of R1 500 per shack within 72 hours, interdicted future evictions without a court order, prohibited intimidation and damage to property, and awarded punitive costs against the City. Leave to appeal was refused by both the High Court and, on petition, the Supreme Court of Appeal on 29 November 2023. Owing to administrative error or ambiguity, two differently-worded dismissal orders were issued on that date, prompting the City’s section 17(2)(f) application for reconsideration.

THE ISSUES

The Supreme Court of Appeal had first to decide whether the procedural irregularity of two inconsistent orders satisfied the statutory threshold of “grave failure of justice” or potential disrepute to the administration of justice, thereby opening the door to reconsidering the refusal of leave to appeal.

If jurisdiction was established, the Court then had to conduct a complete reassessment of the petition for leave to appeal. This entailed asking whether the proposed appeal disclosed reasonable prospects of success or otherwise raised compelling reasons warranting appellate scrutiny. Centrally, the Court had to evaluate the ambit and continuing validity of the 2017 Sutherland J order, the character of the July 2023 demolitions, and the legality of the High Court’s remedial and cost orders.

Finally, the Court had to determine the appropriate disposition of costs in circumstances where the applicants succeeded only in obtaining reconsideration but failed on the substantive merits of their intended appeal.

ANALYSIS

The Court accepted that two mutually inconsistent orders issued on the same day could create legitimate doubt about the test applied to the petition and therefore met the section 17(2)(f) standard. Drawing on the doctrine of functus officio, the Court stated that once a final order is issued a court may alter it only within narrow categories recognised in Firestone v Genticuro, such as correcting clerical errors or clarifying ambiguities. The Registrar’s informal explanation that the second order “corrected a typo” was inadequate to dispel uncertainty, thus justifying reconsideration.

Turning to the merits, the Court dissected the 2017 Sutherland J order, pointing out that it was granted against unidentified persons, contained internally inconsistent and at times nonsensical provisions, and at best authorised assistance to prevent future land invasion. It neither empowered the City to demolish occupied structures nor displaced the procedural safeguards in PIE. Relying on Kayamandi, Zulu and Tswelopele, the Court emphasised that court orders operate inter partes and that eviction requires a case-specific, just-and-equitable inquiry. The July 2023 operations, evidenced by photographs and an inspection in loco, clearly involved occupants and amounted to evictions without court sanction, rendering them unlawful.

The Court also addressed the City’s argument that the High Court had improperly awarded constitutional damages at an interim stage. It explained that the R1 500 contingency formed an integral part of the restoration order, intended only to fund emergency re-erection of shelters if municipal rebuilding proved impossible, and was therefore restorative rather than compensatory. Consequently, the City’s critique did not present a compelling appellate issue.

Finding no reasonable prospects on any ground, the Court concluded that leave to appeal should again be refused. Given that the reconsideration was necessitated by the Court’s own contradictory orders, but that the City remained substantively unsuccessful, costs were nonetheless awarded against the City to avoid prejudicing the respondents.

REMEDY

Both inconsistent 29 November 2023 orders were set aside as a single irregularity. In their place the Supreme Court of Appeal issued a fresh order dismissing the City’s application for leave to appeal. The City and its MMC were directed to pay the costs of the reconsideration application as well as the original petition. No further relief was granted, leaving the High Court’s restorative and interdictory orders fully operative.

LEGAL PRINCIPLES

The judgment reaffirms that the Supreme Court of Appeal may invoke section 17(2)(f) of the Superior Courts Act to revisit its own refusal of leave where a procedural irregularity threatens a grave injustice or public confidence in the courts. It restates that a court becomes functus officio on delivery of its order save for the narrow Firestone exceptions, and that ambiguous or duplicate orders may be corrected only with adequate judicial explanation.

Substantively, the Court confirms that broad preventative interdicts aimed at unidentified future land invaders cannot be deployed as a licence to evict current occupiers without the procedural protections mandated by PIE and section 26(3) of the Constitution. Evictions, whether styled as demolitions or preventative actions, require a fresh judicial determination of justice and equity in relation to the affected persons. Additionally, restoration orders may include contingent monetary relief to facilitate immediate reconstruction, and such relief does not automatically constitute constitutional damages.

Finally, the judgment underscores that cost orders should reflect not only formal success but also the equities of the parties’ conduct, especially where a public authority persists in unlawful actions under colour of an outdated or improper court order.