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[2007] ZASCA 70
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Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality (303/2006) [2007] ZASCA 70; [2007] SCA 70 (RSA) ; 2007 (6) SA 511 (SCA) (30 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case : 303/2006
REPORTABLE
In the appeal between:
TSWELOPELE NON-PROFIT ORGANISATION
...............................
First appellant
AND 23 OTHERS
...............................
Second and further appellants
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
...............................
First
respondent
MINISTER OF HOME AFFAIRS
...............................
Second respondent
MINISTER OF SAFETY AND SECURITY
...............................
Third respondent
Before: Scott JA, Cameron JA, Nugent JA, Maya JA, Snyders AJA
Heard: Friday 11 May 2007
Judgment: Wednesday 30 May 2007
Unlawful eviction – constitutional remedies –
development of suitable remedy – unnecessary to develop
mandament
van spolie – court ordering governmental agencies
that unlawfully destroyed shacks to construct habitable temporary
shelters
for those affected
Neutral citation: Tswelopele Non-Profit Organisation v City of
Tshwane Metropolitan Municipality [2007] SCA 70 (RSA)
JUDGMENT
_______________________________________________________
CAMERON JA:
In the early hours of Friday morning 31 March 2006, about one
hundred persons were evicted from their homes on a vacant piece of
land in the Pretoria suburb of Garsfontein. Officials from three
governmental agencies in a joint operation expelled them from
the
rudimentary shelters they had erected. The pieces of plastic and
other waste materials they had salvaged from surrounding building
sites to construct their homes were put to the torch. Many of their
belongings were destroyed. Sixteen immigrants without South
African
documentation were arrested and later deported.
The operation was carried out by officials from the nature
conservation division of the Tshwane metropolitan municipality
(Tshwane)
(first respondent), the immigration control office of the
Department of Home Affairs (Home Affairs) (second respondent), and
the
South African Police Services (SAPS) (third respondent),
accompanied by members of the Garsfontein community policing forum.
1
Even though the Constitution provides that ‘No one may be
evicted from their home, or have their home demolished, without
an
order of court made after considering all the relevant
circumstances’,
2
and even though the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (‘PIE’) decrees
that
‘No person may evict an unlawful occupier except on the
authority of an order of a competent court’,
3
there was no court order. The eviction violated the law and the
Constitution.
This led the first appellant – a registered non-profit
organisation
4
committed to the upliftment of homeless and destitute people in the
Moreleta Park area (Tswelopele (‘Progress’)) –
to
bring an urgent application ten days later in the Pretoria High
Court. Twenty three named residents who had been evicted (the
occupiers) joined the proceedings as applicants. In the founding
affidavit, Tswelopele’s treasurer, Mr Colin Wilfred Dredge,
a
chartered accountant living in Moreleta Park (which borders on
Garsfontein), described what he saw after receiving a call from
distressed occupiers. Dwellings in which they had been living
peaceably for at least eighteen months had been destroyed. In the
wake of the police, Tshwane employees were burning shacks and
cutting down trees. When challenged, officials from all three
government
agencies refused to show him authorisation under a court
order. Indeed, he says, he was threatened with arrest for
obstructing
the police in the execution of their duties.
In the face of this, Tswelopele sought an order directing the three
respondents to restore the possession of the occupiers before
all
else (ante omnia), and in the interim to provide them with temporary
shelter. The notice of motion also sought costs and further
or
alternative relief. The founding affidavit couched its claim for
relief under the common law mandament van spolie: but it also
expressly invoked the occupiers’ procedural protections under
PIE and their rights under sections 25
5
and 26(3)
6
of the Bill of Rights.
In answer, Tshwane protested that its officials were there merely
‘to eradicate alien vegetation’ (even while admitting
that its nature conservation division was not responsible for the
site), and that they did so believing that the police ‘were
acting lawfully’. Home Affairs said it participated solely ‘to
identify non-documented illegal immigrants’. The
Garsfontein
police station acting commander, senior superintendent John Tinyiko
Masia – who admitted planning the action
with the other
governmental agencies – described it as but a ‘crime
fighting operation’. He and Home Affairs
(though contradicted
in this by Tshwane’s deponent) denied that any dwellings were
destroyed or dwellers evicted. Instead,
they said, the occupiers
left ‘voluntarily’, leaving their waste materials behind
to be cleared.
Jordaan J dismissed the application. He held, following
Rikhotso
v Northcliff Ceramics
7
(which concluded that the mandament van spolie is a remedy for the
restoration of possession, not for the making of reparation),
that
because the officials had destroyed the materials used in the
construction of the dwellings, the occupiers could not be restored
to the possession of their homes. The court could therefore not
grant the relief they sought.
But Jordaan J declined to order costs against the applicants, not
only because they were impecunious, but because the governmental
agencies had acted unlawfully and had not been frank with the court.
Even applying the respondent-friendly test for determining
factual
disputes on opposing affidavits, he rejected the officials’
account of what had happened as ‘ostensibly improbable
and
untruthful’.
When Jordaan J granted the occupiers leave to appeal, these
conflicts portended acrimonious appellate proceedings. But that was
not to be. Before this Court, all three respondents significantly
adjusted their approach. Mr Bruinders for Tshwane acknowledged
that
the city had participated in an unlawful eviction. And at the outset
of his argument Mr Tokota for Home Affairs and the SAPS
recorded an
unambiguous apology for what had occurred, which he described as
‘unlawful’ and ‘unacceptable’.
This
administers some belated but not insignificant balm to the injury
inflicted, since in the place of unsustainable denials and
evasion
it substitutes a willingness to accept constitutional
accountability. And it enables this Court to focus on the principal
issue – which is what relief, if any, the occupiers were
entitled to obtain.
But first it is necessary to consider the respondents’
contention that the occupiers’ appeal has become perempted.
Has the appeal become perempted?
Peremption of the right to challenge a judicial decision occurs when
the losing litigant acquiesces in an adverse judgment. But
before
this can happen, the court must be satisfied that the loser has
acquiesced unequivocally in the judgment.
8
The losing party’s conduct must ‘point indubitably and
necessarily to the conclusion that he does not intend to attack
the
judgment’: so the conduct relied on must be ‘unequivocal
and must be inconsistent with any intention to appeal’
(
Dabner
v South African Railways and Harbours
1920 AD 583
at 594, per
Innes CJ).
The respondents based their contention on these facts:
(a) After the unlawful eviction, the occupiers returned to the site
(the respondents had after all denied that they had been evicted).
But this merely triggered a second joint SAPS/Tshwane operation four
weeks later, in which the occupiers’ shacks were again
demolished.
(b) Tswelopele again went to court. It brought a second urgent
application – joined this time by one named occupier, Ms Seke
Esther Malefo, who was also an applicant in these proceedings, and
further unnamed occupiers, who were cited collectively as the
third
applicant.
(c) On the afternoon of 19 May 2006, Bertelsmann J heard oral
evidence. After Tswelopele had led some evidence, which was
cross-examined
on behalf of the SAPS, the matter stood down. The
parties then entered into a settlement agreement, which Bertelsmann J
made an order
of court.
(d) The order provided that ‘the occupants as at 20h00 on 19
May 2006 of a vacant piece of land on the corner of De Ville Bois
Mareuil and Garsfontein Roads, Moreleta Park’ were to be ‘moved
to be accommodated at the Garsfontein Police Station’
and that
the officers responsible for the police station ‘will take an
inventory of all those people’. On Monday 22 May
2006, Tshwane
was to ‘move the people to a homeless people shelter’ in
Struben Street, Pretoria and to ‘register
them on their housing
subsidy programme’. Pending finalisation of the housing subsidy
application, the occupiers would without
charge ‘be
accommodated in the homeless people shelter’. In the meantime,
the SAPS undertook ‘not to harass and/or
victimise [them] in
any manner whatsoever, during the period of accommodation’. The
respondents were ordered to pay the applicants’
costs.
(e) Later, fifty named persons with South African identity numbers
were accommodated in the Struben Street shelter. Of these, fifteen
survived screening and were enrolled to receive assistance from
Tshwane’s housing subsidy programme.
On these facts the contention that Tswelopele and the occupiers
abandoned the appeal cannot succeed. This is because there is a
misfit between the parties to the two proceedings, and the relief
sought in each does not match.
First, the list of verified applicants in the present proceedings
does not coincide fully with those named or identified at any
stage
of the proceedings before Bertelsmann J. Of the twenty three
individual applicants in this matter, only one was a named applicant
in the second proceedings, and at most nine are listed amongst those
accommodated in the Struben Street shelter. And we were informed
from the Bar that only five were ultimately successful in their
applications for housing subsidies. At the very least, it cannot
be
said that those of the present appellants who did not associate
themselves with or benefit from the order in the second proceedings
abandoned their right to appeal.
But, second, even those who did identify with or benefit from the
second proceedings did not in my view abandon their challenge
to the
outcome of the first. The relief sought and obtained before
Bertelsmann J was temporary shelter, assistance with housing
subsidy
applications, and an undertaking against harassment. In the first
proceedings, though the appellants also sought interim
temporary
shelter, the core of the relief Jordaan J refused was restoration of
possession – that is, the reconstruction of
the destroyed
dwellings. Accepting the former did not entail abandoning the claim
to the latter. Far from acquiescing in the judgment
of Jordaan J, it
is plain that Tswelopele and the individual applicants continued to
challenge its refusal to grant their central
claim. The appeal has
therefore not become perempted.
Remedy
That the wanton destruction of the occupiers’ dwellings
violated the Constitution was not disputed. What must be owned is
how far-reaching and damaging the breach was. The governmental
agencies violated not merely the fundamental warrant against
unauthorised
eviction,
9
but (given the implicit menace with which the eviction was carried
out) the occupiers’ right to personal security
10
and their right to privacy.
11
It infringed not only the occupiers’ property rights in their
materials and belongings,
12
but trampled on their feelings and affronted their social standing.
For to be hounded unheralded from the privacy and shelter of
one’s
home, even in the most reduced circumstances, is a painful and
humiliating indignity.
And it is not for nothing that the constitutional entrenchment of
the right to dignity emphasises that ‘everyone’ has
inherent dignity, which must be respected and protected.
13
Historically, police actions against the most vulnerable in this
country had a distinctive racial trajectory: white police abusing
blacks. The racial element may have disappeared, but what has not
changed is the exposure of the most vulnerable in society to
police
power and their vulnerability to its abuse. Reading comparable case
reports from the decades preceding these events,
14
it is impossible not to endorse appellant’s counsel’s
submission that in its lack of respect for the poor and the
vulnerable, and in the official hubris displayed, what happened
displays a repetition of the worst of the pre-constitutional past.
This places intense focus on the question of remedy, for though the
Constitution speaks through its norms and principles, it acts
through the relief granted under it. And if the Constitution is to
be more than merely rhetoric, cases such as this demand an effective
remedy,
15
since (in the oft-cited words of Ackermann J in
Fose v Minister
of Safety and Security
16
)
‘without effective remedies for breach, the values underlying
and the right entrenched in the Constitution cannot properly
be
upheld or enhanced’:
‘
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 claimant in
Fose
was held not to be entitled to a
specially crafted constitutional remedy for police assaults (namely
punitive damages), since the
ordinary remedies for his injury (the
usual measure of damages) sufficed. This case is different. Though
the respondents urged
us to find that the occupiers should be left
to their ordinary remedies, it is evident that none of them
suffices:
(a)
Damages
: Jordaan J rightly observed that ‘at least
some of the respondents are liable in an action for damages’.
But there are
two problems with this. The first is: damages for what?
The scraps of building and waste materials the occupiers used to
construct
their dwellings have a minimal market value, and the
damages they may recover, even for their destroyed domestic effects,
will probably
be pitifully small. Some may be able to sue for iniuria
(for the invasion of their privacy and the indignity suffered in the
eviction).
and claim more substantial damages, but only after trial
proceedings that could stretch long years into the future –
which
is the second problem.
(b)
Criminal charges
: Jordaan J also noted that the
respondents’ conduct contravened s 8(1) of PIE,
17
which is a criminal offence. A prosecution could have both
instructional and inhibitory effect, but it would provide no material
benefit to the occupiers. And will it happen? Tswelopele on a
previous occasion of harassment (by a private security company) took
the trouble to lodge criminal charges at the Garsfontein police
station. Although eight months had passed when the respondents’
affidavits were filed, the acting station commander had no knowledge
of the matter or of its progress. This is no good portent.
(c)
Interdict
: Tswelopele conceded that a suitably crafted
interdict could put a stop to what could be argued to be a pattern of
unlawful conduct,
particularly by the Garsfontein community police
forum; but an interdict is future-directed: it does not meet the
occupiers’
salvage claim, which would address their present
wants by remedying a past injustice.
(d)
Joining the
Grootboom
emergency relief
and housing queue
: In
Government of the Republic of South
Africa v Grootboom
,
18
the Constitutional Court held that the Constitution requires the
State to devise and implement within its available resources a
comprehensive
and co-ordinated program progressively to realise the
right of access to adequate housing in s 26(2) of the Bill of Rights
–
and that the program must include reasonable measures ‘to
provide relief for people who have no access to land, no roof over
their heads, and who are living in intolerable conditions or crisis
situations’. The respondents contended that we should issue
an
order – such as that Bertelsmann J issued – that embodies
this entitlement. Those occupiers entitled to emergency
relief (or
‘
Grootboom
relief’) and thereafter to a housing
subsidy will no doubt be grateful for the activation of this aid. But
countrywide the
need is enormous; and the queues are long; and it was
common cause during argument that unlawful demolition of one’s
home gives
no claim to priority. The occupiers want relief in
relation to their destroyed shelters now, as well as the promise of
further aid
in due course.
As counsel for the appellants pointed out, effective relief must be
speedy, and it must address the consequences of the breach
of their
rights. The only way to achieve these aims is to vindicate the
occupiers’ salvage claim, and to require the respondents
to
re-create their shelters. The remaining question is the best route
to that result.
Mandament van spolie?
Though the appellants did not abandon their contention that the
mandament van spolie should be constitutionally adapted to afford
them this relief, their primary submission was that a broader remedy
should be developed under the Constitution. In this case,
their
approach to the common law is correct. The Constitution preserves
the common law,
19
but requires the courts to synchronise it with the Bill of Rights.
20
This entails that common law provisions at odds with the
Constitution must either be developed
21
or put at nought;
22
but it does not mean that every common law mechanism, institution or
doctrine needs constitutional overhaul; nor does it mean that
where
a remedy for a constitutional infraction is required, a common law
figure with an analogous operation must necessarily be
seized upon
for its development. On the contrary: it may sometimes be best to
leave a common law institution untouched, and to
craft a new
constitutional remedy entirely.
It is true that the mandament offered the occupiers an alluring
template for the relief they crave. The remedy originated in the
canon law,
23
and found its way thence into Roman Dutch law and modern South
African law.
24
Under it, anyone illicitly deprived of property is entitled to be
restored to possession before anything else is debated or decided
(
spoliatus ante omnia restituendus est
). Even an unlawful
possessor – a fraud, a thief or a robber – is entitled
to the mandament’s protection. The
principle is that illicit
deprivation must be remedied before the courts will decide competing
claims to the object or property.
The mandament’s obvious rule of law dimension gave rise to a
debate between academic experts as to whether its primary rationale
was to protect possession, or to preserve order (and thus to
discourage self-help). The practical focus of the debate was the
question that presented itself here: is the mandament available when
the spoliator (or someone else) has destroyed the property
sought to
be restored? Some pre-constitutional authority supported using the
mandament to make the spoliator reconstruct what he
had destroyed.
In
Jones v Claremont Municipality
,
25
the court ordered a public authority to restore (ie, reconstruct) a
fence it had illegally destroyed: Buchanan ACJ regarded the
municipality’s conduct as ‘very high-handed’, and
said that ‘by ordering them to restore this fence I wish
to
mark my sense of the impropriety of a public body taking the law
into its own hands’.
26
And in
Fredericks and another v Stellenbosch Divisional Council
,
27
where the council demolished squatters’ corrugated-iron homes
‘in flagrant contempt of the law’,
28
Diemont J issued an order requiring it to ‘re-erect’ the
applicants’ homes immediately.
29
This entailed ‘recreating shelters of approximately similar
size and efficacy’.
30
He considered that the order ‘should create no practical
problems’:
‘
If the original sheets of
corrugated iron cannot be found or if they have been so damaged by
the bulldozer that they cannot now be
used there is no reason why
other sheets of iron of similar size and quality should not be used.’
31
But the heavy,
32
albeit not universal,
33
preponderance of academic commentators disfavoured the way the
mandament was extended in
Fredericks
, and in
Rikhotso v
Northcliff Ceramics (Pty) Ltd
34
Nugent J held that a spoliation order cannot be granted if the
property at issue has ceased to exist: the mandament has been
received
into our law as a possessory remedy, and not as a general
remedy against unlawfulness. He observed that the issue of the
mandament
is a preliminary and provisional order, so that the
assumption that underlies it is that the property in fact exists and
may be
awarded in due course to the properly entitled party. Since
possession can not be restored by substitution, the mandament could
not be granted.
35
Nugent J concluded:
‘
It was submitted that the
conclusion to which I have come would encourage the destruction of
property in the course of spoliation.
I do not think that is correct.
I do not suggest that the law countenances wanton destruction, nor
that it does not afford a remedy.
Remedies to discourage such conduct
exist in both the civil and the criminal law. My conclusion is only
that the mandament van spolie
is not that remedy.’
36
The doctrinal analysis in
Rikhotso
is in my view undoubtedly
correct. While the mandament clearly enjoins breaches of the rule of
law and serves as a disincentive
to self-help, its object is the
interim restoration of physical control and enjoyment of specified
property – not its reconstituted
equivalent. To insist that
the mandament be extended to mandatory substitution of the property
in dispute would be to create a
different and wider remedy than that
received into South African law, one that would lose its possessory
focus in favour of different
objectives (including a peace-keeping
function).
It is correct, as Mr Budlender for the appellants emphasised, that
the rule of law is a founding value of the Constitution.
37
This would suggest that constitutional development of the common law
might make it appropriate to adapt the mandament to include
reconstituted restoration in cases of destruction. And counsel is
certainly correct in submitting that the absence of a remedy
mandating substitution of unlawfully destroyed property could create
a perverse incentive for those taking the law into their own
hands
to destroy the disputed property, rather than leaving it
substantially intact.
But as already indicated, I do not think that formulating an
appropriate constitutional remedy in this case requires us to seize
upon a common law analogy and force it to perform a constitutional
function. For there is a further dimension to the case, which
takes
the matter beyond even a developmentally enhanced mandament: the
relief we give must vindicate the Constitution. As Kriegler
J noted
in
Fose
, ‘the harm caused by violating the Constitution
is a harm to the society as a whole, even where the direct
implications of
the violation are highly parochial. The rights
violator not only harms a particular person, but impedes the fuller
realisation
of our constitutional promise’:
38
‘
Our object in remedying these
kinds of harms should, at least, be to vindicate the Constitution,
and to deter its further infringement’.
39
Vindication, Kriegler J noted, ‘recognises that a Constitution
has as little or as much weight as the prevailing political
culture
affords it’.
40
Essentially, the remedy we grant should aim to instil recognition on
the part of the governmental agencies that participated in
the
unlawful operation that the occupiers, too, are bearers of
constitutional rights, and that official conduct violating those
rights tramples not only on them but on all. The remedy should
instil humility without humiliation, and should bear the
instructional
message that respect for the Constitution protects and
enhances the rights of all. It is a remedy special to the
Constitution,
whose engraftment on the mandament would constitute an
unnecessary superfluity.
The occupiers must therefore get their shelters back. Placing them
on the list for emergency
Grootboom
assistance will not
attain the simultaneously constitutional and individual objectives
that re-construction of their shelters will
achieve. The respondents
should, jointly and severally, be ordered to reconstruct them. And,
since the materials belonging to the
occupiers have been destroyed,
they should be replaced with materials that afford habitable
shelters. But because the occupiers
are avowedly unlawful occupiers,
who are vulnerable to a properly obtained eviction order under PIE,
the structures to be erected
must be capable of being dismantled.
Order
1. The appeal succeeds with costs, including the costs of two
counsel.
2. The order of the court below is set aside.
3. In its place, there is substituted:
‘
(a) The application succeeds with costs,
which are to be paid jointly and severally by the respondents.
(b) The respondents are ordered, jointly and severally, to construct
for those individual applicants who were evicted on 31 March
2006,
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 shelters were demolished.’
E CAMERON
JUDGE OF APPEAL
CONCUR:
SCOTT JA
NUGENT JA
MAYA JA
SNYDERS AJA
1
Section
18(1)
of the
South African Police Service Act 68 of 1995
requires
the SAPS to ‘liaise with the community through community
police forums’ established at police stations which
are
‘broadly representative of the local community’
(s
19(1)).
2
Bill
of Rights
s 26(3).
3
">
3
PIE
s 8(1).
Section 8(3)
provides that contravention of ss (1) is an
offence on conviction of which the offender is liable to a fine or
imprisonment not
exceeding two years, or both.
4
Registered
under
the
Nonprofit Organisations Act 71 of 1997
.
5
Constitution
s 25(1) provides that ‘No one may be deprived of property
except in terms of law of general application, and
no law may permit
arbitrary deprivation of property’.
6
Constitution
s 26(3):
‘No one may be evicted from their home, or
have their home demolished, without an order of court made after
considering all
the relevant circumstances. No legislation may
permit arbitrary evictions.’
7
1997
(1) SA 526
(W), where Nugent J held that ‘a spoliation order
cannot be granted if the property in issue has ceased to exist’
(535A-B).
8
In
Hlatshwayo v Mare and Deas
1912 AD 232
at 241 [some editions,
and the reprints since 1921, have the judgment at page 242 and the
citation at page 253], which concerned
not an appeal, but the losing
party’s right to challenge a judgment granted by default,
Solomon J stated that it was of ‘the
utmost importance’
that the court ‘should be clearly satisfied that there has
been acquiescence in a judgment before
it decides to debar any
party’ from challenging a judgment.
9
Bill
of Rights s 26(3).
10
Bill
of Rights s 12(1): ‘Everyone has the right to freedom and
security of the person, which includes the right – …
(b) to be free from all forms of violence from either public or
private sources’.
11
Bill
of Rights s 14: ‘Everyone has the right to privacy, which
includes the right not to have – (a) their person or
their
home searched; (b) their property searched; (c) their possessions
seized; …’
12
Bill
of Rights s 25(1): ‘No one may be deprived of property except
in terms of law of general application, and no law may
permit
arbitrary deprivation of property.’
13
Bill
of Rights s 10: ‘Everyone has inherent dignity and the right
to have their dignity respected and protected.’
14
Including
Fredericks and another v Stellenbosch Divisional Council
1977 (3) SA 113
(C),
George
Municipality v Vena
1989 (2) SA 263
(A) (substantially affirming
1987 (4) SA 29
(C)), and
Administrator,
Cape v Ntshwaqela
1990 (1) SA 705
(A).
15
Bill
of Rights s 38: ‘Anyone listed in this section has the right
to approach a competent court, alleging that a right in
the Bill of
Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights.
…’
Section 7(4) of the interim Constitution also afforded a right to
‘appropriate relief’.
16
[1997] ZACC 6
;
1997
(3) SA 786
(CC) para 69.
17
Set
out in para 2 above.
18
2001
(1) SA 46
(CC) para 99.
19
Bill
of Rights s 39(3): ‘The Bill of Rights does not deny the
existence of any other rights or freedoms that are recognised
or
conferred by common law, customary law or legislation, to the extent
that they are consistent with the Bill.’
20
Bill
of Rights s 8(3)(a) (‘When applying a provision of the Bill of
Rights to a natural or juristic person in terms of subsection
(2)
[which makes such a provision binding on natural and juristic
persons ‘if, and to the extent that, it is applicable,
taking
into account the nature of the right and the nature of the duty
imposed by the right’] a court – (a) in order
to give
effect to a right in the Bill, must apply, or if necessary develop,
the common law to the extent that legislation does
not give effect
to that right’); and s 39(2) (‘When interpreting any
legislation, and when developing the common law
or customary law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights’).
21
As
with the common law definition of marriage:
Fourie v
Minister of Home Affairs
2005 (3) SA 429
(SCA) and
Minister
of Home Affairs v Fourie
[2005] ZACC 19
;
2006 (1) SA 524
(CC).
22
Constitution
Chapter 1, ‘Founding Provisions’, s 2: ‘This
Constitution is the supreme law of the Republic; law
or conduct
inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled.’
23
DG
Kleyn, ‘Possession’ in Reinhard Zimmermann and Daniel
Visser (eds),
Southern Cross –
Civil Law and Common Law in South Africa
(1996)
pages 835-846.
24
CG
van der Merwe, ‘Possession’ in WA Joubert, The Law of
South Africa vol 27 (first reissue 2002), paras 263-277.
25
(
1908)
25 SC 651.
26
(
1908)
25 SC 651at 654-655.
27
1977
(3) SA 113
(C).
28
1977
(3) SA 113
(C) 116D-E.
29
1977
(3) SA 113
(C) 115B-C.
30
1977
(3) SA 113
(C) 118A.
31
1977
(3) SA 113
(C) 117H.
32
The
debate is summarised and the authorities analysed in
MJ
de Waal
Die Moontlikheid van
Besitsherstel as Wesenselement vir die Aanwending van die Mandament
van Spolie
[the possibility of
restoration of possession as essential element for the application
of the mandament van spolie] (University
of Stellenbosch, master’s
thesis, June 1982) pages 88-113; and DG Kleyn,
Die
Mandament van Spolie in die Suid-Afrikaanse Reg
[the
mandament van spolie in South African law] (University of Pretoria,
doctoral thesis, January 1986), pages 396-406, both of
whom, and the
heavy preponderance of the authors they discuss, regard
Fredericks
as alien to the proper terrain of the mandament.
33
MD
Blecher ‘Spoliation and the Demolition of Legal Rights’
(1978) 95
South African Law Journal
8-16
(who pointed out at page 13 that legislative
reaction to
Fredericks
‘
was
swift and harsh’ – Parliament amended the Prevention of
Illegal Squatting Act 52 of 1951 to permit a land owner
or local
authority or government officials to remove structures erected
without consent without any prior notice of whatever nature);
AJ van
der Walt ‘
Naidoo v Moodley
1982 (4) SA 82
(T) – Mandament van Spolie’
(1983) 46
THR-HR
237-240
and ‘Nog eens
Naidoo v Moodley
– ‘
n Repliek’ (1984) 47
THR-HR
429-439.
34
1997
(1) SA 526
(W).
35
1997
(1) SA 526
(W) 532H-535B. Nugent J accepted at 535C that different
considerations may arise in cases of partial destruction, ‘leaving
a substantial part of the property intact’, and in
Ierse
Trog CC v Sultra Trading CC
1997 (4)
SA 131
(C) Foxcroft J granted the mandament even though the
situation there demanded ‘rebuilding and a degree of
substitution of
materials’ (136G-H).
36
1997
(1) SA 526
(W) at 535B-C.
37
Constitution
s 1: ‘The Republic of South Africa is one sovereign democratic
state founded on the following values: …
(c) Supremacy of the
Constitution and the rule of law.’
38
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 95.
39
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 96
.
40
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 96
.