City of Cape Town v J B and Others (21616/19) [2020] ZAWCHC 9; [2020] 2 All SA 784 (WCC) (17 February 2020)

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[2020] ZAWCHC 9
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City of Cape Town v J B and Others (21616/19) [2020] ZAWCHC 9; [2020] 2 All SA 784 (WCC) (17 February 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
CASE
NO; 21616/19
In
the matter between
THE
CITY OF CAPE
TOWN
Applicant
And
J
B
First Respondent
P
S
Second Respondent
SYLVIA
NAHMANA
Third Respondent
THE PROTESTORS OCCUPYING
THI; SECTIONS OF
LONGMARKET STREET, BURG
STREET, INCLUDING
THE SIDEWALKS, AND
GREENMARKET SQUARE,
AS SHOWN ON ANNEXURE "A"
HERETO
("THE
AFFECTED
AREA")
Fourth Respondent
THOSE
PERSONS WHO ASSOCIATED
THEMSELVES
WITH THE AIMS AND CONDUCT
OF
THE FOURTH RESPONDENT AS
WELL
AS THE FIRST TO THIRD RESPONDENTS
Fifth Respondent
THE
NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICES, WESTERN CAPE
Sixth Respondent
THE
PROVINCIA.L COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES, WESTERN CAPE
Seventh Respondent
THE
MINISTER OF HOME
AFFAIRS
Eighth Respondent
JUDGMENT
DELIVERED: 17 FEBRUARY 2020
THULARE
AJ
INTRODUCTION
[1]
This is an urgent application for a
rule nisi
returnable
on a later date to be determined by the court in terms of which the
respondents and any other interested parties are
called upon to give
reasons why a final order should not be granted in the following
terms:
1.
That the first to fifth respondents be ordered to refrain from
the following conduct in Longmarket and Burg Streets, including
sidewalks,
and Greenmarket Square, Cape Town, (the affected area) and
anywhere else in the City of Cape Town;
1.1
intimidating, threatening, harassing or assaulting or in any
way interfering with the applicant's officials, or any persons acting

on their behalf or involved with the law enforcement at the affected
area; and/or
1.2
damaging any of the applicant's assets or facilities or
properties; and/or
1.3
preventing persons from entering or leaving the property;
and/or
1.4
contravening the applicant's By-Law relating to streets,
public places and the prevention of noise nuisance, 2007 published in
the
Province of Western Cape: Provincial Gazette No 6469, on 28
September 2007 and in particular, without derogating from the
generality
of the aforegoing:
1.4.1
staying overnight and sleeping at any time;
1.4.2
making fires;
1.4.3
cooking and eating food;
1.4.4
doing clothes washing;
1.4.5
conducting personal hygiene regimes, including ablutions;
1.4.6
urinating and/or defecating.
2.
That the relief sought as set out in paragraph 1, operate as
an interim interdict pending the final determination of this
application.
3.
In the amended notice, the applicants also sought:
3.1
That the sheriff of the court, assisted by the SAPS if
necessary, be authorised to take such steps as are necessary in the
circumstances
to enforce any interim order granted by this court;
3.2
That the SAPS be authorised to arrest such persons who refuse
to comply with any such order.
3.3
That any interim order granted by this Court be served on the
first to fifth respondents by the Sheriff of the Court in the
following
manner:
3.3.1
affixing at least ten (10) copies thereof to lampposts or
other suitable structures in and around the affected area;
3.3.2
handing out at least fifty (50) copies thereof to protesters
found within the affected area, and in the event of persons refusing

to accept same, leaving such copies in a box or suitable container at
a prominent place in the affected area;
3.3.3
by reading, through a loud hailer, the terms of any interim
order granted, at a prominent place in the affected area.
4.
Costs against any party that opposes the application, jointly
and severally, as the case may be.
[2]
The applicant did not pursue the relief sought against the
National Commissioner as well as the Provincial Commissioner of the
South
African Police Services. The two were cited in the papers as
the sixth and seventh respondents respectively. The applicant and the

Minister of Horne Affairs, who was cited as the eighth respondent in
the papers, reached an agreement in respect of the relief
that the
applicant had sought in the papers.
[3]
The only issue is whether the applicant should be granted the
relief sought against first to fifth respondents (the respondents).
THE
BACKGROUND
[4]
There are two narratives that underpinned the development$
around some foreign nationals living in South Africa in late 2019.
The
first was that some foreign nationals were behind the unlawful
underworld of drug trade, child trafficking, forced prostitution,

building hijackings and general unlawfulness in the country and these
criminals were taking over authority in the streets and some

settlement areas of the Republic.
[5]
The second narrative was that businesses run by some foreign
nationals sold illegal and counterfeit as well as expired goods in
the open market. In terms of this narrative, the upsurge of unlawful
trade in counterfeit goods destroyed the economy and led to
the
increase in unemployment and the decrease in employment
opportunities. The trade in illegal and counterfeit goods affected

the economy in that custom duties, value added tax and normal tax
were not being paid but benefits were derived from the conduct
of
business. Government was denied revenue, which collection contributed
to its socio-economic programmes.
[6]
Intellectual property rights' holders invested in their brands
but could not have any returns on investments. The illegal and
counterfeit
trade was riding on the brands' successes. The brands had
unfair competition and some were forced to consider closing business,

which increased unemployment. Furthermore, the illegal and
counterfeit goods as well as expired goods included pharmaceutical
and medicinal products, as well as food sold generally to the poor.
This was seen as a contributory factor to the state of health
and
even death for some of the poor people. The poor were sold not only
unhealthy but in some instances also toxic consumables.
[7]
These narratives received extensive media coverage, both
audio-visual and print. The narratives alleged collusion between the
alleged
foreign national drug dealers and illegal and counterfeit as
well as expired food traders on one hand, and some members of the
police on the other hand. This alleged collusion, founded on
corruption, was provided as the reason why those foreign nationals

were brazen in their unlawful activities.
[8]
On 1 August 2019 the South African Police Service (SAPS)
undertook a law enforcement operation in the City of Johannesburg
targeting
illegal and counterfeit goods. The police confiscated
illegal and counterfeit goods from the traders and vendors involved.
The
vendors and traders gathered and confronted the police. The
vendors and traders refused to follow the instructions of the police.

The confrontation with the police escalated into a violent attack on
the law enforcement officers. The police and their armoured
vehicles
were pelted with bottles, bricks and petrol bombs by the crowd. The
situation became volatile. The police withdrew from
the operation
allegedly to avoid bloodshed and death. The lawlessness displayed and
the open attack on the police, which also received
both audio visual
and print media coverage, was seen as a challenge to the sovereignty
and authority of the Republic. It fed into
a perception that foreign
national criminals have become ungovernable and did not respect the
laws of this country.
[9]
On 27 August 2019, Jabu Baloyi, a taxi driver, allegedly
witnessed a foreign national who sold drugs to school- going children
at
one of Pretoria's busiest taxi ranks in Bloed street in the City
Centre. He allegedly acted on his observations and was shot dead
by
persons related to the drug underworld. A public riot followed Jabu
Baloyi's killing, which included attacks on businesses of
some
foreign nationals alleged to be behind the underworld drug trade. The
developments around this killing received extensive
media coverage.
Confidence in the capacity or willingness of the State to deal with
the underlying criminality embedded in these
narratives declined.
[10]
Mass protests where people came together and laid the basis
for the solidarity that would challenge the criminality represented
in the two narratives followed. There was a building ferment within
the country. The two narratives and amongst others the two incidents

undergirded the outbreak of mob attacks on some foreign nationals,
some vendors and some businesses owned by foreign nationals,
largely
in and around Johannesburg and Pretoria in the days that followed,
around September. Some homes were burnt, shops were
looted and others
experienced personal violence. This caused a major national and
international outcry.
[11]
The situation veered to the verges of profound moral, ethical
and political crisis. The Executive leadership of the country
condemned
the inhumane and degrading treatment of foreign nationals.
Unity, shared values and a more inclusive society were called for and

a commitment was made to hold those responsible to account. Active
grassroots interventions were mobilized, social movements organized

around the developments on stability and the attacks were
subsequently contained. Some foreign nationals were voluntarily
reintegrated
into communities that they originally fled from. Others
relocated whilst others opted to return to their countries of origin,
some
with a repatriation drive sponsored by their respective
governments and their fellow nationals.
[12]
That history and background was, in my view, essential for a
just determination of this matter. It was necessary to refer to that

history and background, as the issue in this matter should be seen
against that history and background in order to properly
contextualize
it. Under the circumstances, I was unable to disregard
that history and background as it was familiar information known and
that
related to the community at large. It is in the context of that
history and background that the respondents started their sit-in

protest. In my view, that history and background not only met the
criteria for common knowledge, but is also a relevant factor.
The
history and background is not knowledge by my personal observation,
but are facts commonly known as a result of notoriety [R
v Tager
1944 AD 339
at 343]. It is general information.
THE SIT IN PROTEST
[13]
Over the ensuing weeks, especially from 1 October 2019, the
respondents, who are allegedly all foreign nationals, began a
$it...in
protest in the Waldorf Arcade Building, 80 St George's Mall,
Cape Town. This is the building which amongst others, also house the

United Nations High Commissioner for Refugees (the UNHCR). Their
demand was that the UNHCR relocate them as a group to Canada,
other
countries in Europe or any country that would receive them outside
South Africa, and not to their countries of origin. They
alleged fear
for what they referred to as xenophobic violence. They also alleged
that they are all refugees or qualify for that
status and are asylum
seekers. Around 15 October 2019 the number of protesters had reached
around 1200. The first to third respondents
openly led the protest.
The UNHCR advised the respondents that resettlement was highly
unlikely.
[14]
The owners of the building were granted an interim
interdictory relief on 16 October 2019 directing the respondents to
immediately
vacate the building, interdicting them and restraining
them from entering any part of the building unless such respondent
had obtained
express written and signed consent from either the
owners or tenants and further-interdicting and restraining the
respondents from
committing any acts that impeded and or prevented
the owners from accessing, using, rendering of services at or
administering the
building or complying with any of their obligations
to the various tenants.
[15]
The Sheriff of the Court, the South African Police Service,
the Department of Social Development, the Department of Health
Emergency
Services, the Department of Home Affairs, the UNHCR and the
Department of Community Safety as well as the Operational
Co-ordination
for Central Business District of the City of Cape Town
planned a joint law enforcement operation which was carried out on 30
October
2019. In excess of 100 people were arrested for contravening
the court order. Images of the apprehension of women and children,

which enjoyed media coverage, created another national outcry.
[16]
It was during that joint law enforcement operation that the
Central Methodist Church (the Church) offered to provide temporary
shelter
for the respondents at Greenmarket Square. The respondents
were too large a group to all fit in the church. Mostly women and
children
were accommodated inside the church. The men moved their
sit-in protest to the streets, sidewalks and sections of the
Greenmarket
Square in the area around the Church, This is the
affected area. No order is sought against the respondents inside the
church.
[17]
The respondents in the affected area slept in the open, cooked
meals on open fires, bathed or washed themselves, did their washing

and hung clothes to dry and also attended on their personal ablution
and toilet requirements which includes urinating and defecating
in
the streets and sidewalks of the City Centre, which are public spaces
to which the public had a right of access and use. They
have
intentionally blocked, occupied and reserved for themselves a public
space and interfered with the safe and/or free passage
of pedestrians
and vehicles. They have not immediately ceased to do so when directed
by peace officers. They have fought, acted
in a riotous manner and
physically threatened others, the law enforcement officers and
officials of the City of Cape Town.
[18]
The respondents sat on front stoeps of hotels in the area and
refused to leave when requested by the business owners, claiming that

the stoep is on the pavement and therefore public space where they
can sit if they wanted to. As a result, guests felt threatened
and
refused to get off the taxis and enter the hotels. Hotel managers who
tried to engage the respondents on their conduct were
threatened with
physical harm. The Business Forum informed the City and sought its
intervention. A number of European travel advisories
issued warnings
to European tourists against visiting Cape Town as a direct result of
the situation developing with the respondents
in the City. Hotels in
the affected area suffered cancellations of bookings already made by
tourists. The space leased to taxis
was occupied and led to conflict
between the respondents and the taxi operators.
[19]
The Greenmarket Traders Association is made up of traders who
lease space from the City at Greenmarket Square. The Square is one
of
the most frequented places in the City particularly in the peak
tourism season, Many of the Association's members are refugees
and
the asylum, seeking community in Cape Town. The respondents have
occupied parts of their business area. Unhealthy odours from
the use
of the streets and sidewalks as toilet, by the respondents, affect
the traders' work and their businesses adversely. Around
a third had
to close down whilst others are facing collapse in trade. The open
fires are a health hazard.
[20]
The affected area reportedly had the air thick with the stench
of urine, with a series of makeshift tents. The smell was unbearable.

The noise, fights and sexual acts in public by the respondents raised
concern. The refuse th.at lies around posed a heal.th threat.
The
value of the properties. in the area was affected. Properties were
losing tenants and businesses run from the commercial units
lost
viability. Property management companies and other interested parties
asked the City to intervene and enforce its by laws.
Most organized
business formations threatened the City with legal action and some
firms of attorneys started. correspondence with
the City in that
regard.
[21]
The respondents did not avail themselves of the various
available legal resource institutions, to which their attention was
drawn,
and did not utilize their right to legal representation.
Instead, they elected to be represented by their leadership. They did
not file opposing papers and the necessary affidavits in terms of the
rules, opting to make statements which were not under oath
or
affirmation.
[22]
The respondents were aware that their demand for resettlement
to another country other than repatriation to their country of
origin,
if they opted to leave the country, would not be met. Anyone
who expressed themselves on the respondent's unrealistic demand and

sought to influence a. realistic solution was declared an enemy and
was either threatened or attacked by the respondents. This
included
the leadership of faith based organizations, various non governmental
organisations, the UNHCR, the Department of Home
Affairs and the
South African Human Rights Commission. The City indicated that it did
not have alternative accommodation to provide
to the respondents,
whether temporary until resettlement as demanded, or permanently. It
sought to engage the respondents on steps
to terminate contravention
of its By-Law. Its officials were attacked. The bare denials of the
respondents are simply not enough
to gainsay and stand in
contradistinction.
[23]
The respondents have for all intents and purposes established
a self-governing territory within the City of Cape Town. No single

individual, or a group of persons, should be allowed to be a law unto
themselves. An attack on law enforcement officers is an attack
on the
authority of the State. The respondents have shown no respect for
authority. I am not convinced that the vulnerability of
a foreign
national, especially one who has or may qualify for a status as a
refugee or asylum seeker, is in itself a weapon sufficient
to
intimidate officials of a country into submission to a flagrant
disregard of the country's laws and processes. The City is well

within Its rights to defend the rule of law, and enforce its By-Law.
THE
ANALYSIS
[24]
The applicant abandoned its prayer for the respondents to be
ordered to refrain from conducting any form of sit-in protest as it

appeared in its notice of motion. Intimidation, threats, harassment,
assault, malicious damage to property and preventing persons
from
entering or leaving the property, which are conduct referred to in
1.1 to 1.3 above, are common law and statutory offences
in terms of
our law. Nothing turns around them being offences and I deem it not
necessary to restate the elements of those offences.
[25]
The relevant provisions of the City of Cape Town By-Law
relating to Streets, Public Places and the Prevention of Noise
Nuisances,
2007, published in the Provincial Gazette No 6469 dated 28
September 2007 (the City By Law), read as follows:
Clause
2 (1) (a) (i):
"2. (1) No person,
excluding a peace officer or any other official or person acting in
terms of
the law, shall-
(a)
When in a public place-
(i) Intentionally block
or interfere with the safe or free passage of a pedestrian or motor
vehicle;"...
Clause
2 (2):
"2 (2) Any person
who blocks, occupies or reserves a public parking space, or begs,
stands, sits or lies in a public place
shall immediately cease to do
so when directed by a peace officer or member of the Cape Town
Metropolitan Police Department."
Clause
2 (3):
"2(3): No person
shall in a public place­
(a)
Use abusive or threatening language;
(b)
Fight or act in a riotous or physically threatening manner;
(c)
Urinate or defecate, except in a toilet;
(d)
Bath or wash himself or herself, except -
(i) In a bath or shower;
or
(ii) As part of a
cultural initiation ceremony in an area where such a ceremony is
taking place;
(e)
Spit
(f)
Perform any Sexual act;
(g)
Appear in the nude or expose his or her genitalia, except
where designated by the City as area where nudity is permitted,
provided
that this shall not apply to children below the age of
seven;
(h) ...
(i)
(j)
(k) ...
(I) Start or keep a fire,
except an official or person duly authorised to do so or acting in
terms of the law or in an area designated
by the City to do so; or
(m) Sleep overnight or
camp overnight or erect any shelter, unless in an area designated for
this purpose by, or with the written
consent of the City, provided
that this shall not apply to cultural initiation ceremonies or
informal settlements."
Clause
3 reads:
"3. No person shall
in a public space-
(a) Cause or permit to be
caused a disturbance by shouting, screaming or making any other loud
or persistent noise or sound, including
amplified noise or sound;"
Clause
7 reads:
"7. No person, other
than a peace officer or other official or person acting in terms of
the law shall
(a) Deposit, pack, unpack
or leave any goods or articles in a public space, or cause any goods
or articles to be deposited, packed,
unpacked or left in a public
space, other than for
a reasonable period
during the course of the loading or off-loading or removal of such
goods or articles, or
(b) In any way obstruct
the pedestrian traffic on a sidewalk by bringing or allowing to be
brought thereon any object or motor vehicle."
Clause
13(a) and 14 reads:
"13. No person shall
in a public space-
(a) Including on a
balcony or verandah erected beyond the boundary line of a public
road, wash, clean or dry any object, including
any clothing, except
in an area designated by the City for that purpose;" ...
14. No person shall dry
or spread washing, bedding or other items in a public place or on a
fence or the boundary of a public road
except where conditions in an
informal settlement are such that it is not possible to do
otherwise."
Clause
19 reads:
"19. No person
shall, in a public space-
(a) sleep in a stationary
motor vehicle except in dire emergency ( or where such a person is
the driver of a public transportation
motor vehicle or is guarding
the motor vehicle) or in a designated rest area; or
(b) reside in a motor
vehicle for longer than twenty-four hours."
[26]
The City had recourse to contraventions of its By-Laws, as set
out in clauses 22 and 23. The two clauses read as follows:
"THE CITY MAY ACT TO
RECOVER COSTS
22.
(1) Notwithstanding any other provision of this By-Law, the
City may-
(a) Where the permission
of the City is required before a person may perform a certain action
or erect anything, and such permission
has not been obtained; and
(b) Where any provision
of this By-Law is contravened under circumstances in which the
contravention may be terminated by the removal
of any structure,
object, material or substance, serve a written notice on the owner of
the premises or the offender, as the case
may be, to terminate such
contravention, or to remove the structure, object, material or
substance, or to take such other steps
as the City may require to
rectify such contravention within the period stated in such notice.
(2) Any person who fails
to comply with a notice in terms of subsection (1) shall be guilty of
an offence, and the City may, without
prejudice to its powers to take
action against the offender, take the necessary steps to implement
such notice at the expense of
the owner of the premises or the
offender, as the case may be.
OFFENCES AND PENALTIES
23.
(1) Any person who contravenes or fails to comply with any
provision of this By-Law or disobeys any instruction by a peace
officer
or a member of the Cape Town Metropolitan Police Department,
enforcing this By-Law, shall be guilty of an offence and with the
exception of a contravention of section 2(3)(g),(h),(i),(j) and (k),
where there is a maximum penalty as provided for in analogous

national legislation, be liable to c:! fine or imprisonment for a
period not exceeding six months, or to both a fine and such
imprisonment.
(2) Any person whop
contravenes sections 2(2)(g),(h),(i),O)) or (k) shall be liable to a
fine as the court may deem fit to impose
or to imprisonment as the
court may deem fit to impose or to both a fine and imprisonment, not
exceeding the maximum penalty as
provided for in analogous national
legislation. Where there is no maximum penalty as provided for in
analogous legislation the
maximum penalty provided for in subsection
(1) applies.
(3)
A court convicting a person of an offence under this By-Law
may impose alternative sentencing in place of a fine or
imprisonment."
[27]
The evidence showed that the City attempted at st ge to issue
a notice as envisaged in clause 22 of the By Law. The City withdrew

its law enforcement agencies when the respondents acted aggressively
towards its officials. The City abandoned its law enforcement

exercise as a result of a threat posed by the respondents. The
consequence was that the City did not issue notices to the
respondents,
for instance in pursuance of contravention of clause 2
(1) (a) (I), 2 (2) or 7, as regards the erection of structures or
tents
erected on the street$ and sidewalks and other objects. The
City elected not to use available civil remedies provided by the
By-Law
against the respondents. The civil remedy provided for in
clause 22 in my view included provision, in the notice, for an amount

reflecting an administrative charge reasonably associated with the
rendering of any duty by the City as a necessary step to implement

the notice. This would include amongst others the costs of the notice
as well as the tariffs reflecting the costs reasonably associated

with implementation of the notice on action taken by the City should
the respondents fail to comply with the, notice to remove
any
structure, object, material or substance. The tariffs would have a
rational connection between the amount it cost and the extent
of the
action of the City in execution of its function.
[28]
The mindset of the City turned to criminal prosecution, but
not at its instance. There is nothing in the papers that indicate
that
the City had taken necessary steps to implement the terms of any
notice given, I can therefore safely accept that no notice was
issued
to the respondents to terminate their contravention, as offenders of
the By­ law. Clause 22 read with clause 23 also
provides for a
fine or imprisonment or both but only on conviction of an offence
pursuant a judicial process. The City clearly
did not elect a path
that gave it the authority to levy fees, charges and tariffs as well
as the authority to recover fines for
transgressions, over and above
the removal of the respondents.
[29]
The City in its founding papers referred to its various law
enforcement entities. Amongst these is the municipal police service
established in terms of section 64 A of the SAPS Act No. 68 of 1995
(the SAPS Act). The functions of a municipal police service
are set
out in section 64E of the SAPS Act as follows:
"64E. Functions of
municipal police service. - The functions of a municipal police
service are-
(a)
Traffic policing, subject to any legislation relating to road
traffic;
(b)
The policing of municipal by-laws and regulations which are
the responsibility of the municipality in question; and
(c)
The prevention of crime,"
Section
64 F(3) provides:
"64F. Powers of
member of municipal police service.-
(3) Every member of a
municipal police service is a peace officer and may exercise the
powers conferred upon a peace officer by
law within the area of
jurisdiction of the municipality in question: ... "
Section
64H provides:
"64H. Procedure
after arrest by member of municipal police service.- A person
arrested with or without warrant by a member
of a municipal police
service shall as soon as possible be brought to a police station
under the control of the Service or, in
the case of an arrest by
warrant, to any other place which is expressly mentioned in the
warrant, to be dealt with in terms of
section 50 of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977)".
One
should also have regard to section 64 F (2) which reads:
"(2) The Minister
may from time to time prescribe that any power conferred upon a
member of the Service by this Act or any
other law, may be exercised
by a member of a municipal police service: Provided that where the
power includes the power to seize
an article, the member of the
municipal police service shall forthwith deliver the article to a
member."
[30]
There is a deafening silence from the City in its papers,
which silence is too loud to be disregarded, on the full role which
was
played by the City of Cape Town Metropolitan Police Department,
in furtherance of its function to police the By-Law which are the

responsibility of the City. The City enjoyed the benefit of legal
advice and representation in dealing with the contravention of
its
By-Law in this matter. It cannot be said that its election not to
avail itself of the full powers of its resource, the municipal

police, available within its machinery, was an oversight.
[31]
It is not far-fetched, in my view, to conclude that full
utilization of its municipal police would have led to two possible
paths
that the City did not desire to walk. Firstly, arrest is the
most drastic infringement of the rights of an individual and the law

requires of peace officers to regard it as a last resort as a method
of securing the attendance of an alleged offender to court.
The less
invasive method in this matter would have been issuing the
respondents with a written notice as envisaged in
section 56
of the
Criminal Procedure Act, (the
CPA). The admissions of guilt amounts
determined for the prohibited behavior per clause are amounts of not
more than R50QQ..QO
per clause. The non-appearance of contravention
of its By Law in Schedule 1 of the CPA meant that the City deemed it
not advisable
for the municipal police to arrest the respondents
without a warrant. One can conclude from the affidavit deposed to on
behalf
of the City and its interaction with the SAPS and OHA that the
City's primary goal was the arrest of the respondents. The issue
of a
notice as a means to bring the respondents before the court did not
advance the City's goal.
[32]
Secondly, the municipal police would have been well within
their functions to arrest the respondents in order to end an offence
as envisaged in Clause 23 (1) of the By-Law, on the circumstances of
this case. This is a justifiable exception to the general rule
that
the object of an arrest was to secure the attendance of the offender
at his or her trial
[Minister of Safety and Security v Van Niekerk
2008 (1) SACR 56
(CC) at para 19]. It is not for this court to
speculate on the reasons that informed the City's desire to have the
respondents
arrested, but that such arrest should not be executed by
members of its municipal police. The City wanted to eat, but not from
the sweat of the brows of its own officials.
[33]
Suffice it to say that had the municipal police arrested the
respondents, as it was within their functions to have done so, and
brought the respondents as soon as possible to a police station under
the control of the SAPS, I doubt that the application against
the
SAPS would have been necessary The arrest would have started a
knock-on effect, whose next move would have meant that the
respondents would have been dealt with in terms of
section 50
of the
CPA, which included detention, being granted to bail or appearing
before a magistrate's court as soon as reasonably possible,
but not
later than 48 hours after the arrest.
[34]
Any person who contravenes or fails to comply with any
provision of the By-Law or disobeys any instruction by a peace
officer or
a member of the Cape Town Metropolitan Police Department,
enforcing this By-Law, is guilty of a punishable offence. This means
that if and when a complaint is lodged with the SAPS, which relates
to the contravention or failure to comply with the By-Law or

disobeying a member of the municipal police, the SAPS has a duty to
act in accordance with its mandate. The SAPS has a residual
duty in
the enforcement of the By Law. According to its papers, the City
attempted to co-ordinate an appropriate intervention to
deal with the
issue of the respondents. In perusing the papers, I have been unable
to find any evidence that the City or any of
its officials at any
stage attended to a member of the SAPS to file a complainant in
respect of an offence as envisaged in clause
23 of the By-Law. Had
the City done that, in my view, the seventh respondent, the
Provincial Commissioner of the SAPS, may have
chaired a meeting of
the local policing coordinating committee as envisaged in section 64K
of the SAPS Act, in order to determine
its own procedure on how to
deal with the complaint. I doubt that an application against the
National Commissioner and the Provincial
Commissioner would have been
necessary, had the City simply lodged such a complaint.
[35]
My approach to this matter is better summed up by what Yacoob
J said in
Lawyers for Human Rights and Another v Minister of Home
Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC) at para 20:
"[20] The provisions
challenged in the High Court are of immense public importance, being
concerned with a delicate issue that
has implications for the
circumstances in and the extent to which we restrict the liberty of
human beings who may be said to be
illegal foreigners. The
determination of this question could adversely affect not only the
freedom of the people concerned but
also their dignity as human
beings. The very fabric of our society and the values embodied in our
Constitution could be demeaned
if the freedom and dignity of illegal
foreigners are violated in the process of preserving our national
integrity."
[36]
The Immigration Act, 2002 (Act No. 13 of 2002), administered
by DHA, provides for the admission, entering, sojourning and
departure
of foreign nationals in the country. All permits, consents
and authorisations for a foreign national must be issued in writing
by DHA. A foreign national's entering and sojourning in the country
when not documented, is illegal. It cannot be said that there
are
adequate reasons for the City to determine that the foreign nationals
at the affected area are undocumented and their sojourn
illegal,
unless there are sufficient factors for the City to suspect that. I
have perused the affidavit deposed to on behalf of
the City, and
except reference to the countries of origin of the respondents set
out as Rwanda, Burundi, the Democratic Republic
of Congo, Somalia,
Bangladesh and Pakistan, I have been unable to trace factors relied
upon which are sufficient to sustain a reasonable
suspicion by the
City's officials that any of the respondents are undocumented and
their sojourn illegal.
[37]
The City is aware that the respondents claim to be refugees
and asylum seekers. The City understood the concerns of the
respondents
to be related to the service provided to them by DHA. I
say this because in paragraph 9 of the founding affidavit, Mr Petrus
Ignatius
Robberts (Robberts) said:
"9. It has not been
possible to establish the names and other particulars of the fourth
and fifth respondents. The group comprises
of between 200 and 600
persons. They are foreign nationals who have embarked on protest
action against alleged poor treatment by
the eighth respondent, of
which their current conduct is an extension. They are however clearly
identifiable by their current location,
as well as their conduct, as
described herein."
At
paragraph 18 Robberts continued:
"18. The protest
action and conduct described herein, is a sequel to a recent spate of
protest actions by the first to fifth
respondent including occupation
of the offices of the eighth respondent, against alleged poor
treatment by the eighth respondent."
The
City, on itis own version, knew that the respondents amongst others
complained about the quality of the services rendered by
DHA.
[38]
The City cut to the chase in the first paragraph of what they
stated as relevant facts, to wit, paragraph 27:
"RELEVANT FACTS
27. During October 2019 a
group of approximately 300 refugees and asylum seekers began a sit in
protest in the Waldorf Arcade building,
80 St Geroge's Mall,
CapeTown, which inter alia houses the offices of the United Nations
High Commissioner for Refugees ("the
UNHCR"). Their protest
was stated to be against recent alleged xenophobic violence against
foreigners in South Africa and
they demanded that the UNHCR relocate
them out of South Africa, as a group, to either Canada or Europe.
Over the ensuing weeks,
the numbers of the group fluctuated, reaching
a peak of approximately 1200 protesters on 15 October 2019."
The
inescapable conclusion is that on 2 December 2019 when Robberts
deposed to this affidavit, the City knew that not only the
lmmigration Act, but also the Refugees Act, 1998 (Act No, 130 of
1998) (the
Refugees Act) was
applicable to the respondents, The
logical flow from what the City said in paragraphs 9, 18 and 27 is
that a group of refuges and
asylum seekers were unhappy with the
service from DHA, which can only relate to their documentation
related to admission, entry
sojourning and departure in the Republic,
as well as alleged xenophobic attacks.
[39]
In my view, the City places a question mark with a red pen
over its own application's
bona tides
when it proceeds as
follows at paragraph 33:
"33. ... The written
operational plan involved that the DHA would process any persons
arrested and deal with such foreign nationals
who do not have the
requisite permission to be in the country, in accordance with its
procedures and in terms of the Immigration
Act, 13 of 2002 ("the
Immigration Act&quot
;). My understanding of the procedures is that
persons suspected of being illegal foreigners mc:1y be arrested, in
which case they
are detained in cells at the various police stations,
which in this case would be at Cape Town Central Police Station. The
Immigration Act contains
specific procedures in terms of which such
persons found not to have permission to be in the country can then
ultimately be deported."
Only
the City knows why it would deliberately exclude and disregard the
provisions of the
Refugees Act, which
is the legislation which
regulates matters related to refugees and asylum seekers in the
Republic, in its case against DHA.
[40]
The general provisions of refusal of entry, expulsion,
extradition or return to other country where the person may be
subjected
to persecution on the listed grounds or where his or her
life, physical safety or freedom would be threatened on the
applicable
listed grounds in
section 2
of the
Refugees Act demand
not
only an interview but some research of the person and country of
origin by a Refugee Reception Officer and a Refugee Status

Determination Officer. This also relate$ to the qualifications for
the status provided for in
section 3
, the Exclusion provisions in
section 4
, the grounds for cessation of refugee status as provided
for in
section 5
as well as some research, understanding,
interpretation and administration of the Convention Relating to the
Status of Refugees
(UN, 1951), the Protocol Relating to the Status of
Refugees (UN, 1967), the OAU Convention Governing the Specific
Aspects of Refugee
Problems in Africa (OAU, 1969), the Universal
Declaration of Human Rights (UN, 1948) and any other relevant
convention or international
agreement to which the Republic is or
becomes a party. This is required by
section 6
of the
Refugees Act.
This
is over and above functional literacy of the
Refugees Act, the
Constitution and other relevant prescripts. Where necessary, the
Refugee Status Determination Officer may need to consult with
the
UNHCR representative to exchange information. From the City's own
description of the conditions and circumstances, as well
as
inconsistent conduct of the respondents towards DHA, it was not
conducive for DHA to carry out its mandate either at the church
or
the affected area.
[41]
Being a foreign national on its own, within the borders of the
Republic, does not translate into illegality. Being an immigrant is

not illegal either. It is being undocumented that is illegal in South
Africa, as regards foreign nationals. The City itself, in
paragraph
45 of its founding affidavit set out how its own law enforcement
officers had to withdraw a legitimate government exercise
because of
the aggression of the respondents. Law enforcement officers of the
City include the municipal police. It is striking
to note that the
City expected DHA unarmed civilian personnel to walk in where the
City's security and armed forces feared to tread.
[42]
On the other hand, it appears to me that the way that the
respondents interpreted the position was different from what the true
position really was. I have reason to believe, from reading the
papers in this matter, that JP B (B) and P S (S) tended to deceive

the majority of the other respondents. The two leaders are aware and
have been told repeatedly by various persons and institutions,
where
the two represented the respondents, that the demand to be resettled
was unlikely to happen, yet they encouraged its indefinite

sustenance.
[43]
The two are aware that the continued sit-in protest would also
not miraculously translate into them being granted access to housing

in the City of Cape Town. The City had consistently told them that it
had no housing for them, when they demanded it. The City
indicated
that those who sought housing with it apply for it and that most of
those within its jurisdiction are on a waiting list
and further that
the respondents cannot seek to jump that queue simply because they
have engaged in protest action. It is not for
this court to determine
whether the respondents had prospects of success to be provided with
housing under any programme of government
or any other institution.
The power and duty to determine whether a person should be provided
with housing, as an owner or on rental,
a subsidy therefor or a loan
thereto lay outside the jurisdiction of this court. At best all I can
say is that an applicant has
to lodge an application with the
relevant authority and is entitled to enjoy the benefit of the
application process.
[44]
J B's ability to engage proficiently in English, a privilege
from which others did not ordinarily benefit, provided an opportunity

for him to distort perception due to the others' vulnerability. The
two leaders created a deceptive and misleading image, after
gathering
information and processing it by creating a perception that in
reality did not match what the sit-in may achieve. The
majority of
the other respondents were vulnerable firstly on their competency to
intelligibly engage in the issues because of the
language barrier,
and secondly because they were alleged refugees and asylum seekers
who had suffered considerable trauma. Most
had been displaced from
their countries of origin and the experiences of some foreign
nationals in the Republic especially in the
months of August and
September 2019 was simply inhuman. In my view B and S misused the
other respondents' vulnerability, inability
and humility.
[45]
Sad as it may sound, the attacks on some foreign nationals in
the country around August and September 2019 appear to me to have
been an opportunistic bread from which B, S and some of their
hangers-on determined to feed. The reaction of the majority of South

Africans was to contain those attacks and because of the passage of
time as well, that opportunistic bread had become stale and
mouldy.
It is simply unfortunate that B, S and their hangers-on use the
sit-in protest and their demands to try and restore the
stale and
mouldy bread to a fresh loaf. Their sit-in protest and its demands
sounds to me like a broken microwave oven available
to them. However
hard and at whatever frequency the buttons are pressed, it will not
work.
[46]
It appears to me that the illusionary self governing territory
of a make-shift slum settlement established by B, with a shadow
opposition
party led by S, within the Cape Town Metropolitan
Municipality in Greenmarket Square, Longmarket and Burg Streets, is
not sustainable.
The protest is ungovernable. It is used to pursue
unachievable goals and in my view amounts to abuse of the right to
protest, which
is a sacrosanct method to raise and to pursue
legitimate concerns. In essence, the City prays that the government
of the affected
area should move from the pretenders and their
followers and return to the competent authority, to wit, the City of
Cape Town Metropolitan
Municipality.
[47]
In my view, under the circumstances, those respondents who are
in distress have an obligation to attend in person to the relevant

applicable unit of the City or a municipality that has jurisdiction
over their habitual residence within the Republic to seek assistance,

and to provide to the City or that other municipality all the
necessary information to enable the City or that other municipality

to decide on their position. The information may include but is not
limited to the provision of fingerprints and photographs as
regards
their true identity. The information may also include sufficient
particularity of facts, factors and circumstances from
which a well
founded fear of persecution or a threat to their life, physical
safety or freedom is based should they return to their
former
habitual residence in the Republic.
[48]
In my view, this should be a natural flow into our national
law, drawn from our approach on the international stage.
Section 2
of
the
Refugees Act provides
as follows:
"Notwithstanding any
provision of this Act or any other law to the contrary, no person may
be refused entry into the Republic,
expelled, extradited or returned
to any other country or be subject to any similar measure, if as a
result of such refusal, expulsion,
extradition, return or other
measure, such person is compelled to r turn or remain in a country
where-
(a)
He or she may be subjected to persecution on account of his or
her race, religion, nationality, political opinion or membership of
a
particular social group; or
(b)
His or her life, physical safety or freedom would be
threatened on account of external aggression, occupation, foreign
domination
or other events seriously disturbing or disrupting public
order in either part or the whole of that country.”
[49]
Cameron J, writing for the Constitutional Court said the
following about this section in
Ruta v Minister of Home Affairs
2019 (2) SA 329
(CC) at para 24 and 25:
"[24] This is a
remarkable provision. Perhaps it is unprecedented in the history of
our country's enactments. It places the
prohibition it enacts above
any contra1y provision of the
Refugees Act itself
- but also places
its provisions above anything in any other statute or legal
provision. That is a powerful decree. Practically
it does two things.
It enacts a prohibition. But it also expresses a principle: that of
non refoulement,
the concept that one fleeing persecution or
threats to 'his or her life, physical safety or freedom' should not
be made to return
to the country inflicting it".
"[25] It is a noble
principle, one our country, for deep going reasons springing from
persecution of its own people, has emphatically
embraced. The
provenance of
s 2
of the
Refugees Act lies
in the Universal
Declaration of Human Rights (Universal Declaration), which guarantees
1the right to seek and to enjoy in other
countries asylum from
persecution'. The year in which the Universal Declaration was adopted
is of anguished significance to our
country, for in 1948 the
apartheid government came to power. Its mission was to formalize and
systematize, with often vindictive
cruelty, existing raci.al
subordination, humiliation and exclusion. From then, as apartheid
became more vicious and obdurate, our
country began to produce a rich
flood of its own refugees from persecution, impelled to take shelter
in all parts of the world,
but especially in other parts of Africa.
That history looms tellingly over any understanding we seek to reach
of the
Refugees Act."
[50
]
In my view, a respondent has to s ow that factors exist that
compel them not to return to their habitual residence. The City or
that other Municipality may request clarification where such is
necessary. The City or that other municipality has an obligation
to
assist such respondent in that regard, within its means. The City or
that other municipality may conduct such enquiry as it
deems
necessary to verify the information furnished by such respondent in
order to process and deal with such respondent's request
and its
provision for aid in distress.
THE
LAW
[51]
The dust between the SAPS and DHA on one hand and the City on
the other, which largely contributed to the length of this judgment,

including the basis for the order, related mainly to the powers and
functions of each of them. After that dust was settled, what
remained
to be seen was that the City prayed for a restraint order to address
the problem which the respondents had created on
the streets of the
City of Cape Town. Against that background, the main question that
the court had to consider was whether the
City had passed the
threshold and made up a case for an interim order to be granted.
[52]
In
National Treasury v Opposition to Urban Tolling Alliance
ancJ Others (Road Freight Association
as
applicant for leave
to intervene)
2012 (11) BCLR 1148
(CC) at para 41 Moseneke DCJ
said:
"The test ·
[41] The High Court
relied on the well-known requirements for the grant of an interim
interdict set out in
Setlogelo
and refined, 34 years later, in
Webster.
The test requires that an applicant that claims an
interim interdict must establish (a) q
prima facie
right even
if it is open to some doubt; (b) a reasonable apprehension of
irreparable and imminent harm to the right if an interdict
is not
granted; (c) the balance of convenience must favour the grant of the
interdict and (d) the applicant must have no other
remedy."
[53]
The City had a duty and a right to enforce compliance with its
By-Law not only in its own interests, but also in the interests of

the community. The respondents are engaged in contraventions of the
law in public spaces, which the City is custodian of. The affected

area has been rendered ungovernable and a no-go area, which cannot be
countenanced. The City cannot sanction deliberate Illegality
where it
has a duty to its inhabitants and visitors.
[54]
The respondents caused and continue to cause substantial and
irreparable harm, for instance the financial as well as reputational

damage to others in the affected area especially the hospitality
industry and allied businesses of the City, the Province and the

country. The demands of the respondents are unreasonable. The court
cannot advance conduct which makes it impossible for the City
to
govern its territory. The City had shown a
prima facie
right
which if not protected by an interdict, irreparable harm would ensue
[55]
When comparing the harm that the City would endure if the
interim order is not granted against the harm that the respondents
would
suffer if it is granted, in my view, the balance of convenience
favours the granting of the order. It is not my duty to restrain
the
City, a tier of government, to exercise its power and function,
unless it does so outside the bounds of the Constitution and
the law
or infringing the rights enshrined in the Constitution. The doctrine
of separation of powers of the State enjoins me to
exercise caution,
respect and restraint.
[56]
The respondents threatened the law enforcement officers of the
City when the City attempted to obtain their personal information
in
an attempt to issue notices. It is unclear whether these were notices
in terms of clause 22 of the By-Law or in terms of clause
23 of the
By-Law read with section 56 of the CPA. The City abandoned that
course. The papers suggest that it was abandoned as a
result of the
respondent making it impossible, at that time, for the City to obtain
their particulars. The remedy sought in this
matter is urgent and
effective protection. I have my doubts as to whether the two notices,
which are available remedies, can be
said to provide similar
protection
[Setlogelo v Setlogelo
1914 AD 221
at 227], on
urgency alone, at this time. To send the city back to consider the
arrest of the respondents would be technical and
unjust. It is not a
given that in lieu or together with a sentence, the magistrate may
order the civil remedies, which in my view
are necessary under the
circumstances.
[57]
What is clear to me is that unless the court intervenes, the
conduct of the respondents, which has no regard for authority, the
rights of others and the law will continue indefinitely. The City has
satisfied me of the facts necessary for its right to be protected
in
this application. After having considered the attitude and response
of the City in respect of its obligations towards the rights
of the
respondents, as human beings, in my opinion, there is a need to set
out terms which safeguard the respondents. The court
needs to protect
the City, but also to uphold the rights of the respondents
[Webster
v Mitchell
1948 (1) SA 1186
(W) at 1193]. The Bill of Rights in
our Constitution enshrined the rights of all people in our country,
which includes foreign
nationals [section 7(1) of the Constitution].
The City, as a tier of government in our State, must respect,
protect, promote and
fulfill the rights in the Bill of Rights
[section 7(2) of the Constitution]. A just and equitable order is
called for.
THE
ORDER
[58]
For these reasons I would make the following order:
1.
A rule
nisi
is issued returnable on 17 March 2020 on
the semi-urgent roll of the Court, in terms of which the first to
fifth respondents and
any other interested parties are called upon to
give reasons why a final order should not be granted in the following
terms:
1.1
That the first to fifth respondents be ordered to refrain from
the following conduct in the sections of Longmarket and Burg Streets,

including the sidewalks, and Greenmarket Square, Cape Town, as shown
on Annexure "A" hereto ("the Affected Area"),
and
anywhere else in the City of Cape Town:
1.1.1
Intimidating, threatening, harassing or assaulting or in any
way interfering with the applicant's officials, or any persons acting

on their behalf or involved with the law enforcement at the Affected
Area; and/or
1.1.2
Damaging any of the applicant's assets or facilities or
properties; and/or
1.1.3.1 Preventing
persons from entering or leaving the Affected Area; and/or
1.1.4 Contravening the
applicant's By law Relating to Streets, Public Places and the
Prevention of Noise Nuisances, 2007 published
in the Province of
Western Cape: Provincial Gazette No 6469, on 28 September 2007 and in
particular, without derogating from the
generality of the aforegoing:
1.1.4.1 Staying overnight
and sleeping at any time;
1.1.4.2 Making fires;
1,1.4.3
Doing clothes washing;
1.1.4.4 Conducting
personal hygiene regimes, including ablutions;
1.1.4.5 Urinating and
defecating.
1.2
Occupy any structure, object, material or substance erected,
deposited, packed or left on the streets, sidewalks and any public
spaces of the affected area.
1.3
Further and/or alternative relief.
1.4
Costs against any respondent or other person who opposes this
relief.
2.
That the relief sought in paragraph 1.1 above operates as an
interim interdict pending the final determination of this
application,
and only comes into operation on the day after the seven
day period referred to in paragraph 4 below.
3.
That the Sheriff of the Court, assisted by the SAPS if
necessary, be authorised to take such steps as are necessary in the
circumstances
to enforce any order granted by this Court.
4.
For a period of seven (7) court days after the date of this
order:
4.1
the applicant shall make available a suitable venue at which
the Department of Home Affairs (DHA) shall conduct and undertake such

verification and other administrative processes that are required in
relation to the first to fifth respondents in terms of
Immigration
Act 13 of 2002
and/or the
Refugees Act 130 of 1998
4.2
the DHA shall for such purposes deploy officials to undertake
such process;
4.3
the applicant shall provide transport to the first to fifth
respondents from the Affected Area to the aforementioned venue, of as

many persons per day as indicated by the DHA;
4.4
The applicant shall make available a suitable venue at which
it shall process Respondents who are in distress and who attend in
person to the Applicant to seek assistance and provide to the
applicant all the necessary information to enable the applicant to

decide on their position. The information may include but is not
limited to:
4.1.1
personal particulars;
4.4.2 fingerprints and
photographs:
4.4.3 sufficient
particularity of facts, factors and circumstances from which a
well-founded fear of persecution or a threat to
their life, physical
safety or freedom is based should they try return to their former
habitual residents in the Republic.
4.5
the applicant shall provide transport to the first to fifth
respondents from the Affected Area to the aforementioned venue, of as

many persons per day as indicated by the applicant.
5.
That this order be served on the first to fifth respondents by
the Sheriff of the Court in the following manner:
5.1
Affixing at least ten (10) copies thereof to lampposts or
other suitable structures in and around the Affected Area; such
copies
to also be provided in the languages of Lingala, Swahili and
French;
5.2
Handing out at least fifty (50) copies thereof also in the
languages referred to 5.1 to protestors found within the Affected
Area,
and in the event of persons refusing to accept same, leaving
such copies in a box or suitable container at a prominent place in

the Affected Area;
5.3
By reading, through a loud hailer, the terms of any interim
order granted, at a prominent place in the Affected Area, such
interim
order to also be read in the languages of Lingala, Swahili
and French.
6.
That in the event of non-compliance with any provision(s) of
this order, the applicant is granted leave to approach this Court on

the same papers, duly supplemented, for an order of civil contempt
and/or any further and appropriate relief that may be necessary.
7.
No order is made against sixth and seventh respondent.
8.
No costs order is made in respect of First, Second, Third,
Fourth, and Fifth Respondents. The Applicant is ordered to pay the
costs
of the Sixth, Seventh and Eighth Respondents, such costs in
respect of the Eighth Respondent to include the costs of two (2)
Counsel.
_________________
D.
THULARE
Acting
the High Court