City of Cape Town v South African Human Rights Commission (144/2021) [2021] ZASCA 182 (22 December 2021)

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City of Cape Town v South African Human Rights Commission (144/2021) [2021] ZASCA 182 (22 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 144/2021
In the matter between:
THE CITY OF CAPE
TOWN
APPELLANT
and
THE SOUTH AFRICAN
HUMAN RIGHTS
COMMISSION
FIRST RESPONDENT
THE HOUSING
ASSEMBLY
SECOND RESPONDENT
BULELANI
QOLANI
THIRD RESPONDENT
THE ECONOMIC
FREEDOM
FIGHTERS
FOURTH RESPONDENT
THE PERSONS WHO CURRENTLY
OCCUPY ERF 544, PORTION 1,
MFULENI

FIFTH RESPONDENT
THE MINISTER OF HUMAN
SETTLEMENTS

SIXTH
RESPONDENT
THE MINISTER OF
COOPERATIVE GOVERNANCE
& TRADITIONAL
AFFAIRS
SEVENTH RESPONDENT
THE NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN
POLICE
SERVICE

EIGHT RESPONDENT
THE MINISTER OF POLICE

NINTH RESPONDENT
WESTERN CAPE PROVINCIAL
COMMISSIONER

TENTH RESPONDENT
Neutral
Citation:
City
of Cape Town v The South African Human Rights Commission
(Case
no 144/2021)
[2021] ZASCA 182
(22 December 2021)
Coram:
MATHOPO,
SCHIPPERS, NICHOLLS, MBATHA and MABINDLA-BOQWANA JJA
Heard:
15 November
2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 14h00 on 22 December
2021.
Summary:
Civil
Procedure – appealability of interim orders – not appealable when
subject to alteration by high court – exception is where
grave
injustice would occur – claim for compensation final in nature –
cannot be granted in interim proceedings
ORDER
On appeal
from:
Western
Cape Division
of
the High Court, Cape Town (Meer and Allie JJ concurring):
1.
The
appeal against paragraphs 1- 4 of the order of the court a quo is
dismissed with costs, including the costs of two counsel.
2.
The
appeal against paragraph 5 of the order of the court a quo succeeds.
The order is set aside and replaced with the following:
‘
The
second intervening party’s claim against the first respondent for
the return of all building material and personal possessions,
seized
by the its Anti Land Invasion Unit, alternatively, to provide each
household with equivalent building materials and to pay
each occupant
R2000 as compensation for loss of personal possessions, is
dismissed.’
JUDGMENT
Nicholls
JA (Mathopo, Schippers, Mbatha and Mabindla-Boqwana JJA concurring)
[1]
This
is an appeal against an interim order granted by the Western Cape
Division of the High Court, Cape Town (high court). South Africa,
like most countries in the world, declared a national state of
disaster due to the Covid-19 pandemic. During the period 26 March
–
30 April 2020, the country was under a ‘hard lockdown’ in terms
of
section 23(1)
(b)
of the
Disaster Management Act 57 of 2002
, followed by various levels
of lockdown, which persist until today. Regulations in terms of the
Act severely curtailed evictions.
[1]
In July 2020, a video recording of a naked man (later identified as
Mr Bulelani Qolani) being dragged out of his dwelling in an informal
settlement by officials of the City of Cape Town, went viral on
social media platforms.
[2]
These
events prompted the South African Human Rights Commission (the SAHRC)
together with Mr Qolani and
the
Housing Assembly – a social justice movement,
to
launch an urgent application in the high court. In essence, the
relief sought was aimed at preventing the City of Cape Town (the
City) from evicting persons and demolishing structures, whether
occupied or unoccupied, during the national state of disaster,
without
a court order.
This
was couched as interim relief (Part A of the notice of motion)
pending a decision on Part B which primarily dealt with the
constitutionality
of the City’s conduct and its Anti-Land Invasion
Unit (ALIU) which carried out the evictions and demolitions. Further
relief sought
in Part B was whether the defence of counter-spoliation
permitting the eviction from, and demolition of, a structure whether
occupied
or unoccupied, was constitutional and valid in terms of the
law.
[3]
At
the commencement of the hearing in the high court, the Economic
Freedom Fighters (EFF) and the occupiers of Erf 544, Mfuleni
(the Occupiers)
were granted leave to intervene as interested
parties. Apart from supporting the SAHRC and others, they sought
additional relief
that the City return all building materials and
personal possessions seized from them, alternatively, provide each
household, whose
dwelling had been destroyed, with the equivalent
building materials and that each occupant of the property be paid
R2000 as compensation
for the loss of their personal possessions.
[4]
Judgment
in the urgent application, Part A, was handed down on 25 August
2020 in the high court (per Meer and Allie JJ). The
court a quo,
applying a purposive interpretation of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19
of 1998 (PIE),
granted the interim relief sought, pending the determination of Part
B. The orders sought by the intervening parties
were also granted,
subject to minor amendments.
[5]
The
City applied for leave to appeal the interim orders to the high court
which was refused. The appeal is with the leave of
this Court.
[6]
The
City is the appellant before this Court; SAHRC is the first
respondent; the Housing Assembly is the second respondent; Mr
Bulelani
Qolani is the third respondent; the fourth respondent is the
EFF and the Occupiers are the fifth respondents. The sixth to tenth
respondents are
the
Minister of Human Settlements, the Minister of Co-operative
Governance and Traditional Affairs, the Minister of Police, National
Commissioner of Police, the Western Cape Provincial Commissioner of
Police, respectively. These state respondents have not participated
in the appeal and have elected to abide by the decision of the Court.
Any appeal relating to the conduct of the police is accordingly
abandoned.
[7]
The
hearing of Part B spanned seven days of argument and was finalised on
5 November 2021 by a full court of the Western Cape. Judgment
was
reserved, and is expected to be delivered early next year. The
respondents are in agreement that, with Part B having been heard,
this appeal is now to all intents and purposes moot. The City of Cape
Town persists with its appeal despite the imminent judgment
of the
full court.
[8]
This
Court in
Zweni
v
Minister of Law and Order
[2]
(Zweni)
set
out the principles which make an order susceptible to appeal. These
are that the decision must be final in effect and not susceptible
to
alteration by a court of first instance; it must be definitive of the
rights of the parties; and it must have the effect of disposing
of at
least a substantial portion of the relief claimed in the proceedings.
Interim orders, by their very nature, are generally not
final and
will meet none of the criteria set out in
Zweni
,
rendering them unappealable in most cases.
[3]
The rationale informing this consideration is self-evident as courts
are loath to allow court time and resources to be squandered
on
appeals which will be subject to reconsideration by the court a quo
when the final relief is determined. However,
this
is not an inflexible rule and the standard is always whether it is in
the interests of justice to hear the appeal.
[4]
[9]
As
stated by the Constitutional Court in
Cloete
v S; Sekgala v Nedbank Limited
:
[5]
‘
[57]
. . . this Court has held that in considering whether to grant leave
to appeal, it is necessary to consider whether “allowing
the appeal
would lead to piecemeal adjudication and prolong the litigation or
lead to the wasteful use of judicial resources or costs”.
Similarly, in
TAC
I
,
this Court stated that “it is undesirable to fragment a case by
bringing appeals on individual aspects of the case prior to the
proper resolution of the matter in the court of first instance”.
This is one of the main reasons why interlocutory orders are
generally
not appealable while final orders are.
[58]
This Court has held that it will only interfere in pending
proceedings in the lower courts in cases of “great rarity – where
grave injustice threatens, and where intervention is necessary to
attain justice”.’
(Footnotes
omitted.)
[10]
After
confirming that the interests of justice were paramount in assessing
the appealability of an interim order, the Constitutional
Court in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[6]
went
on to set out what factors a court should consider in assessing where
the interests of justice lay:
‘
.
. . To that end, [a court] must have regard to and weigh carefully
all the germane circumstances. Whether an interim order has a
final
effect or disposes of a substantial portion of the relief sought in a
pending review is a relevant and important consideration.
Yet, it is
not the only or always decisive consideration. It is just as
important to assess whether the temporary restraining order
has an
immediate and substantial effect, including whether the harm that
flows from it is serious, immediate, ongoing and irreparable.’
[11]
The
interests of justice standard will inevitably involve a consideration
of any irreparable harm. To successfully appeal an interim
order an
applicant will have to show that it will suffer irreparable harm if
the interim appeal were not granted.
[7]
Even so, stated the Constitutional Court in
International
Trade Administration Commission v SCAW South Africa (Pty)
[8]
,
irreparable harm although important, is not the sole consideration
and the interests of justice require an evaluation of a number
of
factors:
‘
.
. . The test of irreparable harm must take its place alongside other
important and relevant considerations that speak to what is
in the
interests of justice, such as the kind and importance of the
constitutional issue raised; whether there are prospects of success;
whether the decision, although interlocutory, has a final effect; and
whether irreparable harm will result if the appeal is not granted
. .
.’.
[12]
The
first enquiry is to ascertain whether the orders granted by the high
court have a final effect. For this it is necessary to compare
the
orders granted in respect of Part A and the orders sought in Part B,
to ascertain to what extent they overlap.
[13]
The
interim orders granted in Part A (the order) are:
‘
Pending
Part B
1.
That
the First Respondent, its Anti-Land Invasion Unit (ALIU) and any
private contractors appointed by the First Respondent to do
the same
or similar work or to perform the same or similar functions as the
ALIU, are interdicted and restrained from evicting persons
from, and
demolishing, any informal dwelling, hut, shack, tent or similar
structure or any other form of temporary or permanent dwelling
or
shelter, whether occupied or unoccupied, throughout the City
Metropole, while the state of disaster promulgated by the Third
Respondent
in terms of section 23(1)
(b)
of the
Disaster Management Act 57 of 2002
, as amended, remains in
place, except in terms of an order of court duly obtained;
2.
That
to the extent that the First Respondent and its authorised agents
(such as the ALIU and private contractors aforementioned) evict
and/or demolish any informal dwelling, hut, shack, tent or similar
structure or any other form of temporary or permanent dwelling
or
shelter, whether occupied or unoccupied, in terms of a court order,
that they do so in a manner that is lawful and respects and
upholds
the dignity of the evicted persons, and that they are expressly
prohibited from using excessive force, and/or from destroying
and/or
confiscating the materials which is the property of the evictees;
3.
That
to the extent that any evictions and/or demolitions are authorised by
court order, that the South African Police Services, when
its members
are present during an eviction or demolition is directed to ensure
that the said evictions are done lawfully and in conformity
with the
Constitution, in accordance with the SAPS’s Constitutional duty to
protect the dignity of the persons evicted.
4.
That
the First Respondent is interdicted and restrained from considering,
adjudicating and awarding any bids or tenders received in
response to
Tender 308S/2019/20 for “The Demolition of Illegal and Informal
structures in the City of Cape Town”.
5.
That
the First Respondent is to return within a week of the date of this
order all building materials and personal possessions seized
by its
Anti-Land Invasion Unit from the second applicant between the period
1 May 2020 to date.
5.1
The
Attorney for the Second Intervening Party is directed to furnish the
First Respondent with a list of names of those persons claiming
compensation in the sum of R2000 each in lieu of loss of personal
belongings
5.2
The
First Respondent is to pay R2000 to each person whose entitlement to
compensation is agreed upon. In the event of disagreement
by the
First Respondent as to entitlement to compensation once the list is
presented, the parties may approach the Court for relief.
6.
That
the First Respondent shall pay the costs of the application save for
the costs in respect of 25 July 2020. The Fourth, Fifth
and Sixth
Respondents shall bear the costs occasioned by their opposition to
the relief sought at prayer 2.3 of the Notice of Motion.’
[14]
In
Part B the relief sought by the respondents, in summary, is:
1.
A
declaration that the evictions and demolitions, referred to Part A,
without a valid court order, are unlawful and inconsistent with
the
Constitution.
2.
That
to the extent that the evictions and demolitions take place in terms
of a court, this is done in the presence of the police who
should
ensure that they are conducted lawfully in a manner that protects
their dignity and accords with the Constitution.
3.
A
declaration that the decision of the City to mandate the ALIU to
demolish structure which it believes to be unoccupied, is unlawful,
unconstitutional and be set aside.
4.
That
the procedure of using a visual assessment to determine whether or
not a structure is occupied as a home, and therefore eligible
to be
demolished, be declared unlawful, unconstitutional and be set aside.
5.
That
the common law principle of counter spoliation, insofar as it
authorises the eviction from, and the demolition of, any structure
whether occupied or unoccupied be declared invalid and
unconstitutional.
7.
That
the decision to adjudicate Tender 308S/2019/20 for “The Demolition
of Illegal and Informal Structures in the City of Cape Town”
be
declared unlawful, unconstitutional and be set aside.
[15]
A
cursory comparison of the orders sought in Part A with those in Part
B immediately reveals that the only issues excluded from the
determination of the full court is the question of the return of the
building materials seized by the ALIU; the compensation of R2000
in
lieu of loss of personal belongings and the question of costs. This
much was conceded by counsel for the City. Nonetheless this
Court is
called upon by the City to address all the interim orders made
against it, without exception, on the basis that the court
a quo did
not apply the correct test in finding that the requirements for
interim interdictory relief had been met.
[16]
The
next enquiry is whether there will be irreparable harm or a grave
injustice to the City if any of the interim orders are not set
aside.
It is difficult to conceive of a situation where judicial oversight
of evictions and demolitions could ever amount to irreparable
harm.
Or indeed a declarator that, if an eviction or demolition is carried
out in terms of a court order, the ALIU should act lawfully
and
constitutionally, and the police, if present, should ensure that this
is done. This is precisely how the police and ALIU are
legally
obliged to conduct themselves, irrespective of any court order. The
police respondents have not appealed, presumably in acknowledgment
of
this fact. Significantly, the City is not precluded from evicting
persons and/or carrying out demolitions. It is merely prohibited
from
doing so without judicial oversight. There can be no irreparable harm
if the City is compelled to seek a court order before
evicting
persons during the national state of disaster, and pending Part B.
[17]
The
interpretation of PIE, particularly whether it applies to unoccupied
structures, and the unconstitutionality of counter-spoliation,
its
scope and meaning in the context of evictions, are issues to be
determined in Part B. For this Court to entertain an appeal in
respect of those issues which have already been argued, and will be
determined by the full court in the Western Cape, would not only
usurp the function of that court, but lead to parallel judgments on
the same issue, delivered a few months apart. This gives rise
to the
potential for conflicting decisions between the high court and this
Court, clearly a most undesirable outcome to be avoided,
if at all
possible. It is exactly this piecemeal adjudication that the
Constitutional Court has deprecated.
[9]
[18]
Insofar
as the adjudication of the tender is concerned, the City argues that
paragraph 4 of the order was predicated upon incorrect
facts but was,
in any event, unnecessary. This is because any harm that may be
apprehended would be covered under paragraph 2 of
the order. This
might be so but the tender, too, is the subject matter of Part B. The
adjudication of the tender will be determined
by the full court which
would render any decision that this Court may give on an interim
basis, irrelevant.
[19]
None
of the relief sought in paragraphs 1- 4 of the order is final in
effect. Nor will any irreparable harm or grave injustice occur
should
the interim orders remain unaltered until the final relief is
determined. The interests of justice do not dictate that the
interlocutory orders in these paragraphs are appealable and the
appeal in respect of these interim orders falls to be dismissed.
[20]
The
only issue, other than costs, which the determination of Part B will
not finally resolve, is that of the monetary compensation
of R2000 in
lieu of loss of personal belongings and the return of the building
materials. The relief the Occupiers sought in their
notice of motion
was the return of their building materials and personal
possessions.
[10]
In the alternative, an order was sought that the City provide each
household whose dwelling had been destroyed with equivalent building
materials, and pay each occupant the sum of R2000 as compensation for
loss of their personal possessions. Notwithstanding the above,
the
order granted by the high court was not cast in the alternative.
Instead, it directed the City to return all building materials
and
personal possessions within one week,
and
that R2000 be paid as compensation for loss of personal possessions.
[21]
For
this award the high court relied on s 172(1)
(a)
[11]
of
the Constitution which empowers a court to make an order that just
and equitable where there has been a breach of constitutional
rights,
including the award of constitutional damages. While courts enjoy a
wide discretion as to what remedy would be effective,
suitable and
just in any given situation,
[12]
the high court could not avail itself of an award of constitutional
damages on the facts of this case. In the first place the relief
granted was final and not of an interim nature. The order has an
immediate effect and will not be reconsidered on the same facts
in
the final proceedings. While paragraph 5.2 of the order makes
provision for recourse to the high court, this relates to the
entitlement
of a particular individual rather than the principle
itself which remains final.
[22]
Once
the relief sought is final, the
Plascon
Evans
rule
[13]
applies and the respondent’s version must prevail, together with
the admitted facts put up by the applicant, unless these are
far-fetched
and clearly untenable. The City admits that it seized the
building materials of the Occupiers. However, it denies taking any of
their
personal possessions when it demolished the structures.
[23]
This
denial alone should be the end of the matter, particularly where
there is no evidence of the nature of the personal effects,
the value
thereof and from whom they were taken. For payment of compensation
the Occupiers placed reliance on this Court’s decision
in
Ngomane
v
City
of Johannesburg
Metropolitan
Municipality and Another
[14]
(
Ngomane
),
where constitutional damages were awarded.
Ngomane
dealt
with the destruction and confiscation of the property of a group of
homeless people living under a bridge in the city of Johannesburg.
After finding that the removal and destruction of their personal
effects was an arbitrary deprivation of their right to privacy
enshrined
in s 14
(c)
of
the Constitution, which included the right not to have their property
seized, the Court ordered compensation of R1500 per person.
Despite
there being other remedies at their disposal, in light of the
applicants' desperate circumstances, this Court determined
that an
award of constitutional damages was the appropriate remedy.
[24]
The
fundamental difference in
Ngomane
is
that the Court there was dealing with final relief and the conduct of
the City of Johannesburg was found to be unconstitutional.
Here not
only has the City denied taking any personal possessions, but any
interim findings of unconstitutionality by the high court
are subject
to reconsideration by the full court. The final word on whether the
evictions and demolitions were unlawful, or amounted
to an arbitrary
deprivation of property, has not been spoken. This is what the full
court will finally determine. There was no basis,
at that stage, for
the high court to have awarded financial compensation to the
Occupiers. Here there was a paucity of detail whereas
in
Ngomane
there
was evidence of the nature of the items removed and destroyed and a
list of their owners.
Accordingly,
the appeal in regard to the payment of compensation must succeed.
[25]
The
high court also directed the City to return all building materials
seized by the ALIU ‘between the period 1 May 2020 to date’
[15]
.
As with the personal possessions, the details of building materials
seized, and from whom they were taken, are scanty. In the main,
the
confiscations relate to the demolitions at Mfuleni, commonly known as
Zwelethu, Ocean View, and the demolition of Mr Qolani’s
property.
[26]
Mr
Viwe Sigenu, the deponent on behalf of the Occupiers, stated that
seven evictions had taken place in Zwelethu from the end of May
2020
to 13 July 2020. Structures had been demolished and ‘on some days’
the ALIU would confiscate building materials and personal
possessions. Not a single owner of any building materials was
identified. The City’s response was that the area spans two
properties,
one owned by the Cape Nature reserve and the other by the
City. The Occupiers are aware that the Cape Nature property is
not
owned by the City as they were served with an application by the
Western Cape Nature Conservation Board. This resulted in an interim
interdict authorising the City to take reasonable steps to demolish
any illegally erected structures on the Cape Nature property,
to
prevent any persons from entering the area and to remove such persons
and their belongings.
[16]
[27]
The
Housing Assembly referred to an eviction operation which took place
in Ocean View on 15 May 2020. That day, Ms Kashiefa Achmat,
the
chairperson of the Housing Assembly stated that she was present when
the ALIU demolished structures and confiscated materials.
No detail
is provided as what building materials were confiscated, and from
whom they were taken. The City’s response is that it
acted on a
complaint of an unlawful land invasion and ten unoccupied structures
were dismantled and most of the building material
removed. Moreover,
it contends that the removal of unoccupied structures was expressly
contemplated in a court order of the same
division dated 17 April
2020.
[17]
[28]
The
eviction of Mr Qolani and the demolition of his structure took place
on 1 July 2020. The version of the City was that the structure
allegedly occupied by him, was in fact unoccupied. ALIU officials
stated that his structure had not been erected when they attended
the
site the day before, on 30 June 2020.
[29]
In
short, the City alleged that the various demolitions that took place
over that period, concerned structures that were unoccupied,
and it
was therefore entitled to demolish them. All building materials
removed are kept in storage for a period of 21 days, after
which they
are disposed of. The Occupiers are entitled to make arrangements to
collect their building materials from the City’s
depot in Ndabeni.
This is not denied.
[30]
Much
of the content of the City’s answering affidavit and supplementary
answering affidavit was disputed in reply. This underscores
the
difficulty in granting the relief sought in its present formulation.
As Harms JA said in
NDPP
v Zuma,
[18]
motion proceedings
‘
are
all about the resolution of legal issues based on common cause facts’
and ‘cannot be used to resolve factual disputes because
they are
not designed to determine probabilities’.
For
these reasons, the appeal against paragraph 5 of the high court’s
order must succeed.
[31]
This
does not mean that the door is closed to the Occupiers. If, after a
decision is made in respect of Part B, the conduct of the
City is
found to be unlawful, it is open to them to apply for the appropriate
relief.
[32]
What
remains is the appeal against costs. The City complains that costs
are not generally awarded in interlocutory proceedings as
the court
finally hearing the matter may be better placed to determine whether
the application was well-founded. Costs are always
within the
discretion of the court unless it has misdirected itself, thereby
reaching a decision that could not have reasonably been
made if it
had properly applied itself to the relevant facts and principles.
[19]
The high court gave reasons for its decision. There is no indication
that the high court failed to exercise its discretion judicially.
In
any event, the appeal against costs was not pursued with much
enthusiasm by counsel for the City.
[33]
Concerning
the costs of this appeal, the costs should follow the result, and the
respondents are, to an overwhelming extent, the successful
parties.
We were urged to allow costs for three counsel. There is no
justification for this.
[34]
In
the result, the following order is made:
3.
The
appeal against paragraphs 1- 4 of the order of the court a quo is
dismissed with costs, including the costs of two counsel.
4.
The
appeal against paragraph 5 of the order of the court a quo succeeds.
The order is set aside and replaced with the following:
‘
The
second intervening party’s claim against the first respondent for
the return of all building material and personal possessions,
seized
by the its Anti Land Invasion Unit, alternatively, to provide each
household with equivalent building materials and to pay
each occupant
R2000 as compensation for loss of personal possessions, is
dismissed.’
C H
NICHOLLS
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
S Rosenberg SC (with him, M Adhikari and K Perumalsamy)
Instructed
by:
Fairbrudges Wertheim Becker Attorneys, Cape Town
McInttyre van der Post,
Bloemfontein
For 1
st
to 3
rd
respondents:   N Arendse SC (with him S Magardie, M Bishop
and E Webber)
Instructed
by:
Legal Resources Centre, Kenilworth
Webbers Attorneys, Bloemfontein
For 4
th
to 5
th
respondents:   T Ngcukaitobi SC (with him, T Ramogale)
Instructed
by:
Ian Levitt Attorneys, Johannesburg
England Slabbert Attorneys Inc,
Cape Town
Lovius Block Inc., Bloemfontein
[1]
Regulation
36(1) of the Alert Level 3 Regulations Government Gazette No: 43364
GN 608 which applied from 1 June 2020 provided that:
‘
(1)
Subject to sub-regulation (2), a person may not be evicted from his
or her land or home during the period of Alert Level 3 period.
(2)
A competent court may grant an order for the eviction of a person
from his or her land or home in terms of the provisions of
the
Extension of Security of Tenure Act, 1997 (Act no 62 of 1997) and
the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act, 1998 (Act No 19 of 1998)   . . .’
[2]
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 532I-533B.
[3]
City of Tshwane Metropolitan Municipality v
Afriforum and Another
[2016] ZACC 19
;
2016 (6) SA 279
(CC) para 40;
Zweni v
Minister of Law and Order
1993 (1) SA
523
(A) at 523J-533A;
Cloete and
Another v S; Sekgala v Nedbank Limited
[2019] ZACC 6
;
2019 (5) BCLR 544
(CC);
2019 (4) SA 268
(CC);
2019 (2) SACR 130
(CC)
para 39.
[4]
Philani-Ma-Afrika
and Others
v
Mailula
and Others
[2009]
ZASCA
115
;
2010 (2) SA 573
(SCA);
[2010] 1 All
SA 459
(SCA) para 20. See also
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
para 47-55;
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012]
ZACC 18
;
2012(6) SA 223 (CC);
2012
(11) BCLR 1148
(CC) para 24; and
Machele
and Others v Mailula
and
Others
[2009] ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8) BCLR 767
(CC) para 21 - 22.
[5]
Cloete and Another v S; Sekgala v Nedbank
Limited
[2019] ZACC 6
;
2019 (5) BCLR 544
(CC); 2019 (4)
268 (CC); 2019 (2) SACR 130 (CC).
[6]
National Treasury and Others v Opposition to
Urban Tolling Alliance and Others
[2012]
ZACC 18
;
2012 (6) SA 223
(CC) para 25.
[7]
Machele
and
Others v Mailula
and Others
[2009] ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8)
BCLR 767
(CC) para 27. See also
Minister
of Health v Treatment Action Campaign
(No
1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC)
para 12.
[8]
International Trade Administration Commission
v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012
(4) SA 618
(CC);
2010 (5) BCLR 457
(CC) para 55.
[9]
Cloete and Another v S; Sekgala v Nedbank
Limited
[2019] ZACC 6
;
2019 (5) BCLR 544
(CC); 2019 (4)
268 (CC);
2019 (2) SACR 130
(CC).
[10]
It should be noted that para 5 of the order
directed the City to return items seized by the ‘second applicant’
– the Housing
Assembly. This is clearly an error and should have
read the ‘second intervening party’- the Occupiers.
[11]
Section 172 of the Constitution provides:
‘(1)
When deciding a constitutional matter within its
power, a court—
(a)
must declare that any law or conduct
that is inconsistent with the Constitution is invalid to
the extent of its inconsistency’.
[12]
Thubakgale and Others v Ekurhuleni
Metropolitan Municipality
and Others
[2021] ZACC 45
para 43.
[13]
Plascon- Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] 2 All SA 366
(A); 1984 (3) SA 623 (A); 1984 (3) SA 620.
[14]
Ngomane
and Others v City of Johannesburg Metropolitan
Municipality and Another
[2019] ZASCA 57
;
[2019] 3 All SA 69
(SCA);
2020 (1) SA 52
(SCA) para 27.
[15]
The date of the order was 25 August 2020.
[16]
Western Cape Nature Conservation Board v The
Illegal Trespassers of Erf 544 and Others
(Case Number
8913/2020) (WCC).
[17]
Habile and Others v The City of Cape Town
(Case No 5576/2020) (WCC).
[18]
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA);
2009 (4) BCLR 393
(SCA);
[2009] 2
All SA 243
(SCA) para 26.
[19]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of SA Ltd
and
Another
[2015] ZACC 22
;
2015 (5) SA
245
(CC);
2015 (10) BCLR 1199
(CC) at para 88, quoting from
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC)
;
2000 (1) BCLR 39
(CC)
para 11.