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[2014] ZASCA 88
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Fischer and Another v Ramahlele and Others (203/2014) [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) (4 June 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
203/2014
Reportable
In
the matter between:
IRIS
ARILLDA
FISCHER
............................................................................................
First Appellant
CITY
OF CAPE
TOWN
............................................................................................
Second Appellant
and
BOITUMELO
RAMAHLELE
AND
FORTY-SIX
OTHERS
.............................................................
First
to Forty-Sixth Respondents
Neutral
citation:
Fischer v Ramahlele
(203/2014)
[2014] ZASCA 88
(4 June
2014)
Coram:
Mpati P, Theron and Wallis JJA, Hancke and Swain
AJJA
Heard:
27 May 2014
Delivered
4 June 2014
Summary:
Practice – Applications and
motions – dispute of fact – referred for the hearing of
oral evidence - not open to
the court to decide
mero
motu
not to hear oral evidence and
determine the application on legal points not emerging from the
papers and not raised by the parties.
ORDER
On
appeal from:
Western Cape High
Court, Cape Town (Gamble J sitting as court of first instance):
1
The appeal is upheld with no order as to costs.
2
Paragraphs C to F of the order of the court below are set aside.
3
The counter application is referred back to the Western Cape High
Court for the hearing of oral evidence on a date to be arranged
but
otherwise in terms of the order of Zondi J made on 15 January 2014.
JUDGMENT
Theron
and Wallis JJA (Mpati P, Hancke and Swain AJJA concurring):
[1]
On 27 May 2014, this court granted an order as set out above. These
are the reasons for that order.
[2]
On 7 and 8 January 2014 the City of Cape Town’s Anti Land
Invasion Unit (the Unit), with the assistance of both the Metro
police and the South African Police Service (SAPS), demolished
certain structures erected on Erf 150 (remaining extent) Philippi,
the property of Mrs Iris Fischer, an elderly widow. On 10 January
2014, Mrs Fischer and the City, the first and second appellants,
respectively, launched an urgent application (the main application)
seeking an interdict restraining a group of persons described
as
‘persons whose identities are to the applicants unknown and
have attempted or are threatening to unlawfully occupy Erf
150
(remaining extent), Philippi’ from seeking to occupy that
property or erecting structures thereon.
[3]
A rule
nisi
was
issued in the main application and the return date was anticipated by
Mr Ramahlele and 40 other people, who
opposed
the confirmation of the rule
nisi
.
They in turn launched a counter application against the City, in
which they alleged that they had been in peaceful and undisturbed
possession of the structures which they had erected on the property
and
that the demolished structures were
their homes. They sought the following relief in the counter
application:
‘
4.1
declaring the conduct of the City of Cape Town in demolishing and/or
dismantling the informal structures erected by the applicants
at erf
150 (remaining extent) Philippi, to be unconstitutional and unlawful;
4.2 interdicting and
restraining the respondents from evicting or demolishing any informal
structures erected by the applicants
at erf 150 (remaining extent)
Philippi without a valid Court Order;
4.3 interdicting and
restraining the respondent from demolishing, removing or otherwise
disposing of any informal structures, or
the constituent materials of
such structures, erected by the applicants at erf 150 (remaining
extent) Philippi;
4.4 . . . .;
4.5
directing the City of Cape Town to construct for those applicants,
whose informal structures were demolished on 7 and 8 January
2014 and
who still require them, temporary habitable dwellings that afford
shelter, privacy, and amenities at least equivalent
to those that
were destroyed and which are capable of being dismantled, at the site
at which their previous informal housing structures
were demolished.’
The
high court (Gamble J) granted declaratory relief and mandatory
interdicts against the City in the counter application, substantially
in the form sought. This appeal is against that judgment with the
leave of the high court.
[4]
Mrs Fischer is the registered owner of the property which is situated
on the Cape Flats, south of Cape Town international airport
and
adjacent to another long- standing informal settlement. The property
is approximately 2.7 hectares in extent, unfenced and
according to
the City has been covered with dense and overgrown shrubbery. Mrs
Fischer has resided on the property for the past
forty seven years.
There are two brick structures on the property, one consisting of
three bedrooms and the other of two bedrooms.
Mrs Fischer and her son
Reuben, reside in the one structure and the other structure is
occupied by Mrs Fischer’s other son,
William and his family.
The respondents are a group of 37 homeless and poor people who lived
in the rural areas of the Eastern
Cape and moved to Cape Town to find
employment. None of the respondents have full time employment and
they survive from hawking,
part-time domestic work and social grants.
[5]
Until May 2013, the Fischers resided on the property without
interference. In May 2013 unlawful occupiers began to invade the
property for the first time. This invasion took place in relation to
the property as well as several neighbouring properties. The
City, at
that stage took measures, carried out by members of the Unit, to
curtail and manage the invasion. Between 30 April 2013
and 01 May
2013 the City dismantled a number of illegal structures both on the
property and on neighbouring properties. Between
June and August
2013, City officials conducted regular patrols in the area in order
to prevent further incursions onto the property
by unlawful
occupiers. During this period approximately twenty structures were
erected on the property and became occupied. According
to the City,
these structures are currently on the property.
[6]
During August 2013, the City advised Mrs Fischer to obtain legal
assistance on removing the occupiers from the property. The
City also
served a notice on Mrs Fischer in terms of which she was directed to
take steps to evict the unlawful occupiers. Mrs
Fischer subsequently
instructed an attorney, who despite accepting partial-payment, did
not provide any meaningful assistance to
her. Since she did not have
the necessary finances to secure alternative legal representation,
she sought assistance from the City
and SAPS but was informed by the
latter that they would not be able to assist her without a court
order.
[7]
According to the City, a large group of people whom it contends are
the respondents, started erecting structures on the property
on 7
January 2014. City officials were called to the property and
commenced with an operation to dismantle the structures which
were
recently erected or in the process of being erected on the property
at the time. In an affidavit filed on behalf of the City,
Mr Stephen
Clyde Hayward, the head of the Unit, described the events that
occurred on 7 and 8 January 2014:
‘
13.9
On
7 January 2014,
there were about fifteen vehicles queuing up on the side of Sheffield
Road. The vehicles contained building materials of persons
who were
seeking to erect structures on the property. Some persons were
already erecting structures on the property, while others
were
queuing up to do so. On the same day, the City demolished
thirty
two
structures on the property. The
City was cautious in the approach it applied in this regard and was
guided by the following:
The City did not
demolish or indeed interfere with any structures that appeared to be
a home or a dwelling. In any event, they were
certainly not
structures that were occupied. In this regard, [the] City monitored
the property. At about 2 p.m. on
7 January 2014
, the City
noticed that persons were moving onto the property and erecting
structures thereon. The City has staff that undertakes
random patrols
of hot spot areas for land invasions, as the property was. In
addition, the City received an alert of the impending
invasion. The
City immediately informed SAPS and the Law Enforcement Metro Police.
At 5p.m. the City convened a planning session
to respond to the
invasion at the Metro Police in Philippi. The demolition operation
started at 6 p.m. and, as stated, thirty two
structures were
ultimately demolished. I state without reservation that none of these
structures constituted dwellings or a persons’
home and nor
were they occupied. Given that the Anti Land Invasion Unit had
regularly patrolled the area since May 2013, its members
were
familiar with structures that had already been erected on the
property and were cautious not to interfere with those structures.
Instead, it was only structures that had been constructed (and
uninhabited) or were in the process of being constructed that were
demolished. I once again reiterate, no one was residing in the
structures that were demolished. When the Law Enforcement Agencies
left the property on
7 January 2014
(at about 7 p.m.) there
were between 20 and 30 structures on the property. I should mention
that even at that stage there were
about ten more structures that
were left (due to some degree of uncertainty by the enforcement
officers as to whether they were
occupied or not).
13.10
Notwithstanding the aforegoing, when the law enforcement officials
returned to the property on
8 January
2014
(at about 9 a.m.) there were about
a further fifteen new structures (that had been re-erected
overnight). The City immediately
launched an operation to demolish
those structures. I should again reiterate that none of the
structures which the City demolished
were “dwellings”,
“homes” or indeed inhabited by people. The structures had
been erected over a period
of 12 to 15 hours (i.e. between the City
having left the property the previous day and having returned the
next day). This operation
concluded at about 10:30 a.m. on
8
January 2014
. Since then, the City has
undertaken random patrols and the invasion appears to have subsided
since as no new structures were seen.’
[8]
The affidavits delivered on behalf of the applicants in the counter
application alleged that they had moved onto the property
at various
times between April 2013 and January 2014, erected structures and
made those structures their homes. The City and Mrs
Fischer denied
this and claimed that the structures demolished on 7 and 8 January
2014 were structures erected or being erected
on those days as part
of a land invasion and that no-one’s home had been demolished.
The deponents to affidavits on behalf
of the City explained that the
City recognised that it could not evict people and demolish their
homes, even if unlawfully constructed
and occupied, without complying
with the requirements of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land
Act 19 of 1998 (PIE). They denied,
however, that this was what had occurred.
[9]
There was thus a clear dispute of fact between the parties in respect
of the counter application. Wisely, they recognised this
and by
agreement on 15 January 2014 obtained an order from Zondi J referring
the dispute for the hearing of oral evidence. The
issue as defined in
the order was:
‘
Whether
the structures which were dismantled by the City of Cape Town on 7
th
and 8
th
January 2014, at the property known as
Erf
150 Philippi-East remaining extent, were those which were unoccupied
and vacant.’
[10]
Arrangements were made, in view of the urgency of the matter, for
that evidence to be heard on 19 February 2014. On that date
the case
came before Gamble J. This appeal arises because he did not hear the
evidence needed to resolve the dispute between the
parties but
instead decided the case on what he regarded as a legal issue. He
directed (required) that the parties address the
court on
two
points of law which related to the City’s conduct during the
demolition operations on 7 and 8 January 2014; First, the
locus
standi
of the City
to
act as it had done bearing in mind that its actions took place on
private land and second, on what basis the City claimed that
its
conduct
was lawful in the context of the
provisions of s 26(3) of the Constitution and PIE. After hearing
argument on these issues the court
below found – in relation to
the first question – that the City had acted only after Mrs
Fischer had asked its help
and, therefore, the question of the
circumstances under which the City could act
mero
moto
did not arise. It answered the
second question against the City, finding that PIE applied. The
factual basis upon which it did
so is, however, unclear, although it
appears to have involved deciding factual disputes without evidence.
[11]
The order granted by the high court reads:
‘
A.
The main application, being the return date of the rule
nisi
issued in the application for urgent
interdictory relief by Binns-Ward J on 10 January 2014 is postponed
for hearing on the semi-urgent
roll to Thursday 22 may 2014.
B. The costs
associated with the main application are to stand over for later
determination.
C. It is declared
that the conduct of the City of Cape Town in demolishing and/or
dismantling the informal structures erected by
the counter applicants
at erf 150 (remaining) Philippi, was unconstitutional and unlawful.
D. The Respondents
in the counter application are interdicted and restrained from
evicting or demolishing any informal structures
erected by the
applicants at erf 150 (remaining extent) Philippi without a valid
court order.
E. The Respondents
in the counter application are interdicted and restrained from
demolishing, removing or otherwise disposing of
any informal
structures, or the constituent materials of such structures, erected
by the counter applicants at erf 150 (remaining
extent) Philippi.
F. The City of Cape
Town is directed to construct for those counter applicants whose
informal structures were demolished on 7 and
8 January 2014, and who
still require them, temporary habitable dwellings that afford
shelter, privacy and amenities at least equivalent
to those that were
destroyed and which are capable of being dismantled, at the site at
which their previous informal housing structures
were demolished.
G.
Each party will bear its own costs of suit in regard to the counter
application.’
[12]
It is pertinent to set out at the outset what was in issue between
the parties arising from the claim that the counter applicants
had
been despoiled of their homes. The issue was, whether on 7 and 8
January 2014 the counter applicants had been in possession
and
occupation of the structures that the City demolished on those days.
They did not challenge the City’s right to act as
it had done
in relation to vacant and unoccupied structures unlawfully erected on
private property. The only dispute was the purely
factual one of
whether those structures were unoccupied and vacant on 7 and 8
January 2014. The case advanced by the counter applicants
was that
they were erected earlier and were occupied by the counter applicants
as their homes. If they were unoccupied and vacant
then the counter
application fell to be dismissed because the counter applicants had
not been despoiled. If the City had demolished
people’s homes
then it acknowledged that it had acted unlawfully and appropriate
relief had to be granted.
[13]
Turning then to the nature of civil litigation in our adversarial
system it is for the parties, either in the pleadings or
affidavits,
which serve the function of both pleadings and evidence,
[1]
to set out and define the nature of their dispute and it is for the
court to adjudicate upon those issues.
[2]
That is so even where the dispute involves an issue pertaining to the
basic human rights guaranteed by our Constitution, for ‘it
is
impermissible for a party to rely on a constitutional complaint that
was not pleaded’.
[3]
There are cases where the parties may expand those issues by the way
in which they conduct the proceedings.
[4]
There may also be instances where the court may
mero
motu
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject to
the
proviso that no prejudice will be caused to any party by its being
decided.
[5]
Beyond that it is for the parties to identify the dispute and for the
court to determine that dispute and that dispute alone.
[14]
It is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important
they may
seem to it, and to insist that the parties deal with them.
[6]
The parties may have their own reasons for not raising those issues.
A court may sometimes suggest a line of argument or an approach
to a
case that has not previously occurred to the parties.
[7]
However, it is then for the parties to determine whether they wish to
adopt the new point. They may choose not to do so because
of its
implications for the further conduct of the proceedings, such as an
adjournment or the need to amend pleadings or call additional
evidence. They may feel that their case is sufficiently strong as it
stands to require no supplementation. They may simply wish
the issues
already identified to be determined because they are relevant to
future matters and the relationship between the parties.
That is for
them to decide and not the court.
[8]
If they wish to stand by the issues they have formulated, the court
may not raise new ones or compel them to deal with matters
other than
those they have formulated in the pleadings or affidavits.
[15]
This last point is of great importance because it calls for judicial
restraint. As already mentioned Gamble J ‘required’
the
parties to argue as a preliminary issue what he described as two
issues of legality. Although he added that the parties were
amenable
to these proposals, counsel who appeared in this Court and in the
court below, confirmed that the judge’s own description,
that
he ‘required’ the points to be argued, was accurate. They
were not asked for their submissions on whether this
was an
appropriate approach to the matter or even, which was more pertinent,
whether either question was in issue in the case.
Nor were they asked
whether their clients agreed to broaden the issues to encompass these
points. The authority on which the judge
relied in adopting this
approach
[9]
was not in point. That was a case where the court,
on
the application of one of the parties,
held
that he could dispense with the hearing of oral evidence,
notwithstanding the case having been referred for the hearing of
such
evidence, because the questions raised on the papers could be
determined without hearing such evidence and the evidence could
not
affect the resolution of those issues. It is a far cry from that for
a court to raise issues that do not emerge from the papers
and have
not been canvassed in the affidavits and require that those be argued
instead of hearing oral evidence and deciding the
issues raised by
the parties.
[16]
In argument before this Court counsel for the City said that they had
been offered no choice. On the first day of the hearing
the judge
mentioned two cases to counsel in chambers involving the
mandament
van spolie
and adjourned for them to
prepare argument in the light of those cases. When they returned the
following day he ruled that the
issues described above should be
argued. Counsel for the counter applicants confirmed this course of
events. The parties found
themselves in a situation where they felt
obliged to argue matters that formed no part of the case. That may
easily arise because
of the relative positions of judge and counsel
or litigant. The latter may feel obliged to adopt the course
indicated in order
to avoid displeasing the judge and possibly
without adequate reflection on the implications of what they are
being told to do.
For that reason judges must always exercise extreme
caution before suggesting that parties depart from the course that
they have
chosen. That is particularly so in urgent matters where
there is not always sufficient time to think through the implications
of
the issues raised by the judge. Gamble J obviously felt that
counsel (and their clients) had acquiesced in the course he
suggested,
but acquiescence is not consent and what was required was
a clear and unequivocal change in the entire approach to the case by
the counter applicants to which the City and Mrs Fischer needed to
respond. That did not occur.
[17]
The result is that this appeal arises from a decision by the court
below on issues not identified by the parties as relevant
to their
dispute and without hearing the evidence that they agreed was both
relevant and determinative of the dispute. Had it simply
heard that
evidence it would have been in a position to decide whether the
City’s allegations were correct or whether the
individual
counter applicants were truthful when they claimed to have been in
occupation of homes erected on the property before
7 and 8 January
2014. The hearing would have taken place on 19 February 2014 and the
following days and once those factual issues
had been determined the
dispute would have been resolved. The probability is that this would
have occurred some time ago and there
would have been no need for
this appeal. Indeed experience teaches one that in the course of the
hearing the true situation would
probably have emerged fairly rapidly
and the parties might well have been able to resolve the matter
without the need for a judgment.
One need only read the judgment of
Howie J in
Ntshwaqela
,
[10]
and the subsequent judgment of Nicholas AJA in this Court,
[11]
to see that this is likely to be the case.
[18]
Regrettably the learned judge in the court below ignored these
salutary rules. Without determining the factual dispute that
lay at
the heart of the counter application, he granted the relief claimed
by the counter applicants. This led to a most unhappy
situation. His
order was inconsistent with the rule
nisi
granted by one of his colleagues on the
application by the City and Mrs Fischer, which application was being
dealt with separately.
Confusion as to the respective parties’
legal rights and obligations was thereby engendered. The proper
resolution of the
dispute has thus been significantly delayed and we
have been obliged to restore the position as it stood when Zondi J
made his
order.
[19]
The failure to explore the factual circumstances of the counter
applicants lead to the court below granting an order ostensibly
relating to Mr Ramahlele and 46 others. This overlooked the fact that
the list of counter applicants only contained 42 names, leaving
Mr
Ramahlele on one side. In respect of three of those there was no
affidavit and no evidence at all. In respect of another three
their
complaint related to an eviction in April 2013 the lawfulness of
which was not in issue. This led to the order in their favour
being
abandoned in a footnote in the respondents’ heads of argument.
Even that abandonment was problematic as the boyfriend
of one of
those who had not signed an affidavit had deposed to an affidavit
that encompassed both their interests. In respect of
one counter
applicant his complaint was not that his house was demolished but
that a shop and shed adjacent to the house had been
demolished. Two
mentioned on the list did not themselves depose to affidavits and
other people deposed to affidavits on their behalf.
Of the remainder,
one appeared to accept that he was trying to move onto the property
on 7 January 2014 and another said that she
had moved in three days
before.
[20]
If one eliminates the doubtful cases the rest of the counter
applicants claimed to have moved onto the property, built their
shacks and lived in them from various dates in 2013. They claimed
that they were in possession of their homes and had been dispossessed
by the City’s actions, basing their claims on the
mandament
van spolie.
[12]
This was deliberate and entirely appropriate, because, if their
factual allegations were correct, they had been despoiled. No doubt
because they did not need to do so, they placed no reliance on
section 26(3) of the Constitution or PIE, notwithstanding that they
were represented by one of the largest public interest law firms in
this country, the experience of which in this field is unrivalled.
[21]
In this Court, the respondents did not rely on the first issue raised
by Gamble J, although one of the
amici
sought to address it. The second issue raised the question of the
relationship between PIE and the right of the lawful owner and
possessor of land under both s 25(1) of the Constitution and by
virtue of the
mandament van spolie
.
There is a potential tension between the two, the resolution of which
is by no means easy. In addition it raised the question
of how local
authorities may respond to conduct constituting a land invasion and
the extent to which they or the police may intervene
in such
situations. Yet these issues were resolved without having been
addressed in the papers and without any factual input as
to the
implications of a decision one way or the other from any party or an
amicus curiae
.
There are many bodies that would be affected by or interested in its
resolution and which would have been in a position to assist
the
court with information and legal submissions. That is evidenced by
the fact that in this Court two bodies with conflicting
interests and
submissions intervened as
amici
,
namely Abahlali Basemjondolo Movement SA, which was assisted by SERI
Law Clinic, and the City of Johannesburg Metropolitan Municipality.
Courts should not resolve issues of such public importance without
affording all interested parties the opportunity to participate
in
the proceedings so as to ensure that the court is as well-informed as
possible about the implications of its decision.
[22]
The court below appears to have been oblivious to these difficulties.
It came to its decision without referring to any of them.
That
decision, as is apparent from the heads of argument furnished to us,
was potentially far-reaching. The judge upheld the counter
application and granted final relief in substantially the terms
sought by the counter applicants. He decided that the dismantled
structures were occupied because:
‘
The
fact that the structure had reached the stage of its completion
indicates an intention on the part of the builder to take up
residency therein.’
and
‘
If
the structure is complete, the invasion of the piece of land in
question has taken place, occupation has occurred, and the provisions
of PIE are applicable.’
In
other words the mere existence of the structure and the intention of
the builder to occupy it determines whether that person
is an
unlawful occupier and entitled to the protection of PIE. Actual
physical occupation becomes irrelevant. That is inconsistent
with the
nature of the possession upon which the
mandament
van spolie
is based, which, in the case of immovable property, involves factual
control as well as the intention to derive some benefit from
the
land.
[13]
The possession must be both peaceful and undisturbed. A judgment of
the full court, binding on Gamble J, held that this meant physical
possession that was sufficiently stable and durable for the law to
take cognizance of it.
[14]
This was overlooked. The conclusion reached was also inconsistent
with the judgment of this Court in
Barnett
,
[15]
on the meaning of occupation for the purposes of PIE.
[23]
A land invasion is itself an act of spoliation. The Constitutional
Court has recently reaffirmed that the remedy of the
mandament
van spolie
supports the rule of law by preventing self-help. A person whose
property is being despoiled is entitled in certain circumstances
to
resort to counter spoliation.
[16]
If the issues in this case were to be broadened, the counter
application would have to be investigated and that could only be
investigated by hearing evidence on the requests to the City by Mrs
Fischer for assistance in regard to the squatting on her property.
Another issue central to the relief to be granted was whether Mrs
Fischer was a joint spoliator with the City in relation to any
act of
spoliation by the City.
[17]
None of these issues had been canvassed in the affidavits before
Gamble J, because the counter application was based upon entirely
different facts. The claim by the counter applicants was that they
had been in occupation of the demolished structures on Mrs Fischer’s
property for a sufficient period prior to 7 and 8 January 2014 to
render their possession of their sites peaceful and undisturbed
so as
to entitle them to invoke the
mandament
van spolie
.
[24]
For all those reasons the course adopted in the court below was
impermissible. It should simply have heard the evidence tendered
by
the parties and determined the true facts. Had it done so there was
no dispute between the parties as to the legal position
and
appropriate relief could have been ordered depending upon the court’s
factual findings. That would also have meant that
the learned judge
would not have fallen into the trap, as he did, of making factual
findings adverse to the City on the affidavits
as he did, in the
alternative, by finding, contrary to the City’s evidence, that
the demolished structures were in fact the
homes of the counter
applicants. He would also not have had to concern himself with the
operation of the
Plascon-Evans
rule,
which he appears to have misconstrued in thinking that it operated
against the City, which overlooked that in relation to
the counter
application the City was the respondent and entitled to the benefit
of the rule.
[25]
It is for these reasons that the order was granted.
__________________
L
V THERON
JUDGE
OF APPEAL
_________________
M
J D WALLIS
JUDGE
OF APPEAL
APPEARANCES
For
Appellants: A Katz SC with M Adhikari
Instructed by:
Fairbridges Inc,
Cape Town
McIntyre & Van
Der Post, Bloemfontein
Second
Amicus Curiae: C D A Loxton SC with A W Pullinger
For
Respondents: S Margadie
Instructed
by:
Legal Resources
Centre, Cape Town
Webbers
Attorneys, Bloemfontein
First
Amicus Curiae: S Wilson with Z Makgalemele
Instructed
by:
SERI Law Clinic,
Johannesburg
[1]
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972
(1) SA 464
(D) at 469 C-E.
[2]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) paras 15 and 19.
[3]
Phillips
& others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006
(1) SA 505
(CC) para 39.
[4]
Shill
v Milner
1937
AD 101
at 105.
[5]
CUSA
v Tao Ying Metal Industries
[2008] ZACC 15
;
2009
(2) SA 204
(CC) para 68;
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) para 39;
Maphango
& others v Aengus Lifestyle Properties (Pty) Ltd
2012
(3) SA 531
(CC) paras 109-114.
[6]
The power of a court under rule 33(4) to separate an issue or issues
mero
motu
is a power to be exercised in respect of issues that already emerge
from the pleadings. It is not a power to formulate new issues
not
chosen by the parties and to require them to be debated.
[7]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981
(3) SA 340
(A) at 345A-E. For a recent example in another
jurisdiction see
Cramaso
LLP v Ogilvie-Grant, Earl of Seafield and Others
[2014]
2 All ER 270
(SC) paras 4-7.
[8]
See for example
Herald
Investments Share block (Pty) Ltd & others v Meer & others;
Meer v Body Corporate of Belmont Arcade & another
2010
(6) SA 599
(D) para 6.
[9]
Wallach
v Lew Geffen Estates CC
[1993] ZASCA 39
;
1993
(3) SA 258
(A) at 262H-263I.
[10]
Ntshwaqela
& others v Chairman, Western Cape Regional Services Council &
others
1988
(3) SA 218 (C).
[11]
Administrator,
Cape, & another v Ntshwaqela & others
1990
(1) SA 705 (A)
[12]
The
Constitutional Court has authoritatively expounded the nature of the
mandament
and
endorsed the judgments of this Court as to its nature. Madlanga J in
Ngukumba
v Minister of Safety and Security
(087/13)
[2014] ZACC 14
para 10,
said:
‘
The
essence of the
mandament van spolie
is the restoration before all else of unlawfully deprived possession
to the possessor. It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the
despoiled person must be restored to possession before all else).
The spoliation order is meant to prevent the taking of
possession
otherwise than in accordance with the law. Its underlying philosophy
is that no one should resort to self-help to
obtain or regain
possession. The main purpose of the
mandament
van spolie
is to preserve public order
by restraining persons from taking the law into their own hands and
by inducing them to follow due
process.’ (Footnotes omitted.)
See also
Tswelopele Non-Profit Organisation & others v
City of Tshwane Metropolitan Municipality & others
2007 (6)
SA 511
(SCA);
George Municipality v Vena & another
1989
(2) SA 263
(A) at 271H-272B.
[13]
Ntshwaqela
& others v Chairman, Western Cape Regional Services Council &
others
1988
(3) SA 218
(C) at 221E-F
[14]
Ness
& another v Greef
1985
(4) SA 641
(C) at 647D-F.
[15]
Barnett
& others v Minister of Land Affairs & others
2007
(6) SA 313
(SCA) para 38.
[16]
Yeko
v Qana
1973
(4) SA 735
(A) at 739B-D;
Ness
& another v Greef, supra,
at
647I-649H.
[17]
Administrator,
Cape, & another v Ntshwaqela & others
1990
(1) SA 705
(A) at 718G-720B.