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[2021] ZAECELLC 11
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National Department of Public Works v Fani & 77 others (738/2020) [2021] ZAECELLC 11 (4 January 2021)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EAST LONDON CIRCUIT LOCAL DIVISION
Case No. EL 738/2020
In
the matter between:
NATIONAL DEPARTMENT
OF PUBLIC
WORKS
Applicant
And
SIMPHIWE FANI & 77 OTHERS COLLECTIVELY REFERRED TO
AS “RESIDENTS OF FARM GREYDELL
(AIRPORT
PARK)”
First Respondent
VATHISWA
JACK
Second Respondent
JUDGMENT IN RESPECT
OF APPLICATION FOR LEAVE TO APPEAL
HARTLE J
[1]
The applicant seeks leave to appeal against
the whole of my judgement
delivered in the above matter on 29 October 2020
in favour of the respondents on the bases that the proposed appeal
would have a
reasonable prospect of success
[1]
and that (even though that prospect be slim) that
there is a compelling reason why
the
appeal should be heard.
[2]
[2]
The compelling reason advanced in this instance
is the right of the applicant (originally the first respondent) as
the owner of
land against the rights of those who invaded her land,
especially in the context of the very frequent land
invasions throughout the Republic, and the need
to develop legal remedies around
the
issues that such land invasions raise.
[3]
Regarding
the
ground
firstly that I erred in determining the factual dispute
whether the respondents were evicted
from
their homes
in their favour, I accept that an
appeal court may well find that there was a true dispute of fact that
ought
to have been referred
for oral evidence (albeit the applicant misses the point that
it was its failure to pertinently assert that the
sample photographs depicting incomplete structures on which the
deponent on her
behalf relied
belonged to any
of the applicants who were joined in the
proceedings and who claimed to have had their homes demolished
that
rendered the claimed dispute of fact illusory). Indeed, I found that
since the applicant had skimpily dealt in her answering
affidavit
with the respondents’ claims that they had been unlawfully
evicted from
their
homes
I could in effect determine the matter on the
basis of the respondents’
allegations.
[4]
I accept though the criticism that even in
reaching that premise (that the applicant had a case to answer) that
I may have too generously
read in or (as was
contended
on
behalf
of
the
applicant)
attributed
“cumulative
credence”
to
the respondents’ somewhat unconventional
affidavits
[3]
whereas they failed to carefully plead their cases individually (as
opposed to collectively) that they had
in
fact established homes in their respective structures, i.e. that each
of them enjoyed individual possession of identifiable structures
comprising those among
the
number that the applicant purported to demolish pursuant to the order
which the Sheriff (originally the second respondent) asserts
she was
executing, what rights were derived therefrom in each instance, and
how those rights were specifically impacted by the
demolition
exercise.
[5]
I concede that it was for this very reason (that
they contented themselves
with
making vague assertions in respect of their respective positions)
that I concluded that I could not entertain the aspect of
their
entitlement to constitutional reparation to assuage the unfortunate
consequences of them been left bereft of their homes
and thus granted
them leave to supplement their papers
in
this respect.
[6]
The ground referred to above ought to be enough
reason to accede to the
application
on the basis that another court would either have referred the
dispute
for the hearing of
oral evidence or rejected the application out of hand.
[7]
Leave was initially sought to the full court of
this Division which would be appropriate especially if the proposed
appeal is upheld
on this limited basis as
this
would be dispositive of the matter. If not however, there remains the
issue of
appropriate relief
to be granted pursuant to my finding that the respondents were
arbitrarily evicted from their homes in violation
of their constitutional rights.
[8]
I
am
not
in
agreement
with
counsel
for the applicant that I
should not have
entertained
some
form
of
redress
for
the
respondents
in
all
the
circumstances consequent upon my finding that the
respondents had being unlawfully evicted from their homes in breach
of their constitutional
right not to be arbitrarily evicted, or
that that aspect could not stand over for
determination to be established
at
a later juncture on papers appropriately amplified in due course.
[4]
I concede however that I adopted an unconventional approach in this
respect and that this was premised on the lack of specificity
pleaded
by each of the respondents to highlight their circumstances and
penury in each instance occasioned by the demolition exercise.
[9]
The Supreme Court of Appeal in Ngomane and Others
v City of Johannesburg Metropolitan Municipality
[5]
endorsed the principle that following a
declaration that conduct is unlawful and
inconsistent with the Constitution, that such a finding (at least
theoretically), entitles
an applicant, even in motion proceedings, to
appropriate relief for the violation of their fundamental rights as
envisaged in section
38 of the Constitution.
[10]
As to what constitutes “appropriate relief”
the Constitutional Court said in Fose v Minister of Safety and
Security:
[6]
‘
It
is left to the courts to decide what would be appropriate relief in
any particular case.
Appropriate relief
will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances
of each particular case
the relief may be
a
declaration of rights, an interdict, a
mandamus
or such other
relief as may be required
to ensure that the
rights enshrined in the Constitution are protected and enforced. If
it is necessary to do so, the courts may
even have to fashion new
remedies to secure the protection and enforcement of these
all-important rights.’
[7]
And that:
‘
[T]his Court has a particular duty to ensure
that, within the bounds of the Constitution, effective relief be
granted for the infringement
of any of the rights entrenched in it…
Particularly in a country where so few have the means to enforce
their rights through the courts, it is essential that on those
occasions when the legal process does establish that an infringement
of an entrenched right has occurred, it be effectively vindicated.
The courts have a particular responsibility in this regard and are
obliged to “forge new
tools” and
shape innovative remedies, if needs be, to achieve that goal.’
[8]
[11]
In Ngomane the court observed that a claimant in
respect of a constitutional breach that has been established (in that
instance
the court held that
the
confiscation and destruction of the applicants’ property was a
patent, arbitrary
prevention
thereof)
[9]
is not necessarily bound to the formulation of the relief originally
sought or the manner in which it was presented or argued:
‘
Although
the applicants sought only the return of their property, it bears
mention that
a
claimant in respect of a constitutional breach that has been
established is not
necessarily bound to
the formulation of the relief originally sought or the manner in
which it was presented or argued.
[10]
Thus, it matters not that the applicants sought to vindicate their
constitutional rights for the first time in this Court.’
[11]
[12]
The court held further that it was not ideal for
the applicants in that instance (who had equally failed to
sufficiently describe
the property of which they were confiscated and
permanently deprived by the destruction thereof with sufficient
particularity to
replace it with fungibles or place a reliable value
on the property) to have pursued an ordinary remedy in the form of a
damages
claim and
came to a
rough and ready assessment of an amount of R1 500,00 each as
compensation for the destruction of their property. This
amounted was
intended not only to assuage the constitutional breach of their
fundamental rights but also
to
protect them and others similarly situated against violations of
their rights to dignity and property in the manner envisaged
in Fose.
The court highlighted the
difficulty
of confining persons similarly situated against violations of their
rights
to dignity and
property to pursue an ordinary remedy in the form of a damages claim:
‘
In light of these facts, I
do not think that the applicants should be left to pursue the
ordinary remedy in the form of a damages
claim as suggested by the
court a quo. They
lamented
the practical difficulties posed by this route, which were
acknowledged by the
court
itself. Instituting a damages claim would involve them in costly and
time- consuming civil litigation in respect of property,
which
although valuable to them, is otherwise mostly of trifling commercial
value. The undisputed evidence is that many of the
applicants daily
search for work and collect recyclable materials, which they sell
in order to survive. They would be hindered in
this if they were required to attend court
proceedings. They have no money for transport to
attend court. And for the very reason
that
it would not be possible for them to prove the market value of the
property destroyed in the conventional way, an action for
damages is
not an appropriate remedy.
Such an action is likely to fail
or result in a nominal award of damages.’
[12]
[13]
The court described the objective of the award in
the following terms:
‘
The
respondents however were not willing to accede to the applicants’
proposal.
[13]
The
amount of R 1 500
for each applicant, R 40 500, is not a large sum of money. But, in my
view, it constitutes appropriate relief
in the specific circumstances
of this case. It will vindicate the Constitution and protect the
applicants and others similarly
situated against
violations
of their rights
to
dignity and
property in
the manner
envisaged in
Fose
.
This is particularly so, given the applicants’ willingness to
accept this amount
as redress for the
wrong they have suffered; the declaratory order and costs award
issued below; and the order by the court a quo
in relation to the
removal by the City of
property of homeless
people from public places (which hopefully in future will have the
desired effect and prevent a recurrence
of conduct of the kind in
question).
[14]
I had in mind in my order the same kind of
redress (or opportunity to later
pursue
same) for those who could not have their shacks reconstituted
temporarily
as I had
envisaged by prayers 2 and 3 of my order.
[14]
[15]
Having stated above that I am inclined to grant
leave to appeal against my
factual
finding that the respondents were evicted from their homes by the
demolition exercise, I believe, as was suggested by counsel
for the
applicant, that
the issue of
an appropriate remedy (if it arises) ought more conveniently to be
dealt with by the Supreme Court of Appeal for the
reason stated in
paragraph [2]
above and on
the legal bases provided for in section 17 (6) (a) (i) or (ii) of the
Superior Courts Act that the decision to be appealed
involves a
question of law of importance (in the context of the very frequent
land invasions in the country of property
inter
alia
owned by the State) and or the
administration of justice, either generally or relative to the
peculiar facts of this matter.
[16]
Counsel for the applicant referred me to a recent
South African Law Journal article by Professor Z T Boggenpoel
[15]
in which she provides a critical analysis of the judgment of the
Supreme Court of Appeal in Ngomane v City of Johannesburg
Metropolitan
Municipality. Whilst she suggests that although the
judgment should be welcomed for speaking out against the violation of
constitutional
rights in the context of property deprivation
especially in this instance, she laments the compartmentalisation of
remedies into
common-law, legislative and constitutional rights. She
argues that the interplay between remedies should not be overlooked,
but
in fact renegotiated every time the possibility arises that
existing common-law remedies can be used to give effect to
constitutional
rights. She concludes that the matter before the
Supreme Court of Appeal could have benefited from a more principled
and clear
discussion of the interplay aforesaid and the violation of
the constitutional right to property under discussion. (She thought
that a more principled discussion was warranted in order to conclude
that there was in fact an infringement of section 25 (1) of
the
Constitution)
[17]
If my factual finding is upheld, although the
nature of the peculiar infringement of rights would be clear in my
view, I accept
that the issue of how those violations are to be
addressed by way of constitutional relief and what approach is to be
adopted in
a large scale exercise such as applies here under these
peculiar circumstances, more especially as to
what would constitute appropriate relief and how this is permissibly
to be ascertained,
certainly requires consideration by the Supreme
Court of Appeal.
[18]
In the premises I issue the following order:
1.
Leave
is granted to the applicant to appeal to the Supreme Court of Appeal
against the whole of my judgment delivered on 29 October
2020.
2.
The
costs of this application will be costs in the appeal.
____________________________
B HARTLE
JUDGE
OF THE HIGH COURT
DATE OF HEARING:
15 December 2020 DATE OF JUDGMENT:
4 January 2021*
*Judgment
delivered electronically by email to the parties on this date.
APPEARANCES
:
For the applicant:
Messrs T.M Ntsaluba SC and Mr. N Nabela instructed by The State
Attorney, East
London (ref. Mrs Tyani – 322/16-P2)
For the respondents: Mr. Z Madukuda instructed by
Sipho Klaas Attorneys, East London (ref. SK/eviction2020/1)
[1]
Section 17
(1) (a) (i) of the
Superior Courts Act, No
10 of 2013
.
[2]
Section 17
(1) (a) (ii) of the
Superior Courts Act, No
10 of 2013
.
[3]
No case was made out in the founding papers. Their
joinder was belated and effected after the applicant’s
answering affidavit
had been filed. Even the supplementation of the
papers by those who sought leave to join was underwhelming and
required assistive
reading in.
[4]
This is especially so because the application had been
launched on an urgent basis and involved many affected
claimants.
[5]
(734/2017)
[2019] ZASCA 57
;
[2019] 3 All SA 69
(SCA);
2020 (1) SA 52
(SCA) (3 April 2019).
[6]
1997 (3) SA 786 (CC).
[7]
At paras [18] and [19].
[8]
At par [69].
[9]
Supra
, at par [21].
[10]
Modderfontein Squatters, Greater Benoni City Council v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of the Republic of South Africa & others v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre,
Amici Curiae)
2004
(6) SA 40
(SCA) para 18; Carmichele v Minister of Safety
and Security & another (Centre for Applied Legal Studies
intervening)
[2001]
ZACC
22;
2001
(4) SA
938
(CC)
[2001] ZACC 22
; ;
2001
(10) BCLR 995
(CC); Bannatyne v Bannatyne (Commission for
Gender Equality, amicus curiae)
[2002]
ZACC 31;
2003
(2) SA 363
(CC)
[2002] ZACC 31
; ;
2003
(2) BCLR 111
(CC); President of the Republic of South
Africa & another v Modderklip Boedery (Pty) Ltd (Agri SA &
others, Amici Curiae)
[2005]
ZACC
5
;
[2005] ZACC 5
;
2005
(5)
SA
3
(CC);
2005
(8) BCLR 786
(CC) para 53.
[11]
At par [23].
[12]
At par [25].
[13]
It appears that counsel for the applicants had proposed that they
were prepared to accept a standard, nominal amount of R1 500,
00 for
each applicant, as compensation for the loss of their property and
the wrong they had suffered.
[14]
I accept that I did not stipulate clearly in respect of these two
prayers (read with prayer 4) that I meant to benefit only such
of
those who had lived in the felled
shacks
(as opposed to the
brick structures) which could be roughly and temporarily
reconstituted pending the PIE proceedings. (See Para
[43] of my
judgment). This was on the basis of the similar constitutional
remedy crafted in Tswelopele Non-Profit Organization
v City of
Tshwane Municipality
2002 (6) SA 511
(SCA) and as the full court had
provided for in Ntantanta and Others v Mhlontlo Local Municipality
and Another (CA51/15, CA52/15,
75/15/ 76/15, 3412/14, 3434/14,
3407/14) [2016] ZAECMHC 10 (5 April 2016) at para [18] – [28].
I trust that this disposes
of the applicants’ ground relied
upon in the present application that since it was common cause that
the structures in
issue were
demolished
, that I erred in
holding that the respondents were entitled to reconstituted
restoration on the basis that this “is against
the principles
governing spoliation.” I believe that the objective of the
remedy which I provided for in my order has been
misconstrued by the
applicant.
[15]
Revisiting
the
Tswelopele
remedy:
A
critical
analysis
of
Ngomane
v
City
of
Johannesburg
Metropolitan
Municipality
2020 SALJ 424.