THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1337/2022
368/2023
In the matter between
THE CITY OF CAPE TOWN APPELLANT
and
THE SA 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 EMFULENI FIFTH RESPONDENT

ABAHLALI BASEMJONDOLO MOVEMENT AMICUS CURIAE

Neutral citation: City of Cape Town v The South African Human Rights Commission and
Others (1337/2022; 368/2023) [2024] ZASCA 110 (10 July 2024)
Coram: MOCUMIE, MOTHLE and MEYER JJA and KOEN and COPPIN AJJA
Heard: 07 MAY 2024
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 11h00 on 10 July 2024.

Summary: Property law – common law defence of counter -spoliation – ambit and
requirements of counter -spoliation – whether the interpretation of counter -spoliation adopted
by the high court is correct – whether, in the circumstances, the City had a right to counter-
spoliate in light of the Bill of Rights, ss 10, 14(c) and 26 (3) of the Constitution of the Republic
of South Africa.

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ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Saldanha,
Dolamo and Slingers JJ, sitting as a court of first instance):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.



JUDGMENT

Mocumie JA (Mothle JA, Meyer JA, and Koen and Coppin AJJA concurring):

[1] This appeal concerns the question whether a municipality, as a local sphere of
government1, can counter-spoliate when homeless people invade its unoccupied land.
If so, under which circumstances can it justifiably do so without resorting to one of the
available remedies under our law.2 Furthermore, whether counter-spoliation requires
court supervision. And if so, how or to what extent? The appeal is from the Western
Cape Division of the High Court (the high court) with leave of the court a quo.

[2] The appeal has its genesis in the City of Cape Town (the City), removing many
homeless people who had invaded several pieces of its unoccupied land . The
removals took place between April and July 2020 without an order of court. The City’s
Anti-Land Invasion Unit (the ALIU) acting on behalf and on instructions of the City,
demolished their homes, structures and or dwellings, commonly referred to as shacks,
consisting of corrugated iron sheets , and others made of plastic sheets, cardboard
boxes and wooden pallets . It also destroyed some of their belongings found inside
those structures. Some people were injured in the process, while others were treated
in the most undignified and humiliating manner.

1 As contemplated in s 151 (1) of the Constitution of the Republic of South Africa,1996.
2 Mandament van spolie or an ordinary interdict, or a remedy under the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998.

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[3] On 8 July 2020 , as a result of this conduct on the part of the City , the South
African Human Rights Commission (the Commission), approached the high court for
urgent interlocutory relief, on behalf of the homeless people. Relief was sought in two
parts. Part A served before Meer and Allie JJ, who on 25 August 2020 interdicted the
City from removing the land occupiers from the land, pending the finalisation of Part B,
and directed that certain compensation be paid. In respect of the declaratory relief in
Part B, the City sought to justify its conduct with reliance on the common law remedy
of counter- spoliation, which, in certain circumstances may permit a party, instanter, to
follow up and retrieve possession of that which it has been despoiled of. This is what
is on appeal before this Court . The second to fourth respondents thereafter sought
and obtained leave to intervene as interested parties in the proceedings. The Abahlali
Basemjondolo Movement sought leave to join as amicus curiae, and although initially
opposed by the City, their application was granted.

[4] The City was partially successful on appeal to this Court in respect of Part A in
so far as the order for the payment of compensation was set aside. Part B was heard
by a specially constituted court of three judges (Saldanha, Dolamo and Slingers JJ).
In a written judgment delivered on 15 July 2022, the high court held as follows:
‘159.1 Prayer 1 of the amended notice of motion and Prayer 4.2 of the relief sought by
the intervening applicants
159.1.1 The conduct of the first respondent, the City on the 1st July 2020 is declared to
have been both unlawful and unconstitutional in respect of the attempted demolition and
eviction of Mr Bongani Qolani from the informal structure that he occupied at Empolweni;
159.1.2 The conduct of the City in the demolition of structures (and effective eviction of
persons affected thereby), based on its incorrect interpretation and application of the common

persons affected thereby), based on its incorrect interpretation and application of the common
law defence of counter spoliation o n erf 18332 Khayelitsha (the Empolweni/Entabeni site) in
Khayelitsha is declared to have been both unlawful and unconstitutional;
159.1.3 The conduct of the first respondent, the City in respect of the demolition of
structures (and the effective eviction of persons affected thereby) on land that belonged to the
Hout Bay Development Trust on erf 5144 prior to it having obtained the permission from the
Trust to lawfully conduct counter spoliation operations on the property belonging to the Trust
is declared to have been both unlawful and unconstitutional;
159.1.4 The conduct of the first respondent, the City is declared to be both unlawful and
unconstitutional in respect of the demolition of structures (and the effective eviction of persons

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affected thereby) o n erf 544, Portion Mfuleni prior to having obtained permission from
Cape Nature on the 8 July 2020 to assist it with conducting lawful counter spoliation
operations; and
159.1.5 The first respondent, the City is ordered to pay the costs of the three applicants
and intervening applicants in respect of the relief in prayers, 1.1 to 1.4 inclusive including the
costs of two counsel where so employed.
159.1.2 Prayer 2 of the amended notice of motion
159.1.2.1 The relief sought by the applicants and to the exten t supported by the
intervening applicants against the 4 th ,5th and 6 th respondents, the police respondents, is
dismissed; and
159.2.2 No order as to costs is made in respect of the relief in prayer 2.1 of the amended
notice of motion.
159.1.3. Prayer 3 of the amended notice of motion
159.1.3.1 The relief sought in terms of prayer 3 is covered by the order we make in
respect of prayer 6 of the amended notice of motion.
159.1.4. Prayer 4 of the amended notice of motion
159.1.4.1 The relief sought in terms of prayer 4 of the amended notice of motion is
covered by the order we make in respect of prayer 6 of the amended notice of motion.
159.1.5. Prayer 5 of the amended notice of motion
159.1.6. It is declared that the first respondent (the City)’s ALIU is not per se unlawful
provided that, in discharging its mandate to guard the City’s land against unlawful invasions,
it acts lawfully.
159.1.7. Prayer 6 of the amended notice of motion
159.1.7.1 We reiterate that counter spoliation, properly interpreted and applied, is neither
unconstitutional nor invalid. However, the APPLICATION of counter spoliation, incorrectly
interpreted and applied by the City, is inconsistent with the Constitution and invalid insofar as
it permits or authorises the eviction of persons from, and the demolition of, any informal
dwelling, hut, shack, tent, or similar structure or any other form of temporary or permanent

dwelling, hut, shack, tent, or similar structure or any other form of temporary or permanent
dwelling or shelter, whether occupied or unoccupied at the time of such eviction or demolition.
159.1.8. Prayer 7 of the amended notice of motion
159.1.8.1 The application to review and set aside the decision by the City to issue Tender
No 3085/2019/20 and to the extent necessary, any decision to award and implement the
tender, on the ground that it is unlawful, arbitrary and/or unreasonable, is dismissed.’

[5] The judgment of the high court has been reported sub nom South African
Human Rights Commission (SAHRC) and Others v City of Cape Town and Others

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(8631/2020).3 It is accordingly not necessary for the facts or litigation history which has
been set out therein to be repeated here.

[6] In its judgment, the high court, with reference to the ‘instanter’ requirement of
counter-spoliation, held that:
‘A narrow interpretation and application of instanter is preferable because it is consistent with
the common law and the constitutionally enshrined Rule of Law. The very label of
counter spoliation is indicative that its objective is to resist spoliation and that it may be
resorted to during the act of spoliation. Furthermore, the description of counter spoliation
indicates that it must be part of the res gestae or a continuation of the spoliation - thus giving
guidance to what is meant by instanter. Counter spoliation is no more than the resistance to
the act of spoliation. Therefore, it follows that once the act of spoliation is completed and [the]
spoliator has perfected possession, the window within which to invoke counter spoliation is
closed.’4

[7] The high court deemed it unnecessary to decide the issue of the
constitutionality of counter-spoliation, as initially sought by the Commission and the
intervening parties. Before this Court, counsel agreed that although the Commission
approached the high court on that basis (the constitutional attack), the Notice of Motion
was amended substantially , and the issue had been narrowed down to whether the
City satisfied the requirements of counter-spoliation in the circumstances. The appeal
proceeds on that basis.

[8] The crisp issue therefore is whether the high court was correct to find that the
City applied counter spoliation incorrectly? In other words, that the City had not acted
instanter under the circumstances , and thus was not justified to have
counter- spoliated under the prevailing circumstances, with the consequential damage
to the unlawful occupiers ’ homes, structures, property and in some cases , their

to the unlawful occupiers ’ homes, structures, property and in some cases , their
injuries, and the impairment of their dignity, especially in the case of Mr Qolani, the
third respondent.

[9] This Court in Tswelopele Non-Profit Organisation and Others v City of Tshwane

3 South African Human Rights Commission an d Others v City of Cape Town and Others [2022]
ZAWCHC 173; [2022] 4 All SA 475 (WCC); 2022 (6) SA 508 (WCC).
4 Ibid para 62.

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Metropolitan Municipality,5 when considering whether there was a need to reconsider
the mandament van spolie and related remedies in the light of the provisions of the
Constitution, stated the following, which remains good law:
‘The Constitution preserves the common law, but requires the courts to synchronise it with the
Bill of Rights. This entails that common law provisions at odds with the Constitution must either
be developed or put at nought; 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.’

[10] In Silberberg and Schoeman’s The Law of Property,5 the authors state that ‘[a]s
a general rule , a possessor who has been unlawfully dispossessed cannot take the
law into [their] hands to recover possession. Instead, [they] will have to make use of
one of the remedies provided by law, for example the mandament van spolie.6 But if
the recovery is forthwith (instanter) in the sense of being still a part of the act of
spoliation, then it is regarded as a mere continuation of the existing breach of the
peace and is consequently condoned by the law. This is known as counter- spoliation
(contra spolie ).’ It is thus an established principle that counter - spoliation is not a
stand- alone remedy or defence and does not exist independently of a spoliation.

[11] As the authors explain, it is clear that counter-spoliation is only permissible
where: (a) peaceful and undisturbed possession of the property has not yet been
acquired, ie when the taking of possession is not yet complete; and (b) where the
counter-spoliation would not establish a fresh breach of the peace. Once a spoliator

counter-spoliation would not establish a fresh breach of the peace. Once a spoliator
has acquired possession of the property and the breach of the peace no longer exists,
counter-spoliation is no longer permissible. The person who seeks to counter-spoliate,
in this case the City, must show two requirements: (a) the (homeless) person was not
in effective physical control of the property (the possessory element); and (b) thus, did
not have the intention to derive some benefit from the possession (the animus

5 Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality [2007]
ZASCA 70; [2007] SCA 70 (RSA); 2007 (6) SA 511 (SCA) para 20. (Citations omitted).
5 G Muller et al Silberberg and Schoeman’s The Law of Property 6 ed (2019) at 353.
6 Mandament van spolie is a common law possessory remedy which is used to restore possession that
was unlawfully lost. It means a person disposed of their possession must approach a court of law first
with an application to restore their possession.

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element).

[12] This means, if a homeless person enters the unoccupied land of a municipality
with the intention to occupy it, the municipality may counter-spoliate before the person
has put up any poles, lines, corrugate d iron sheets, or any similar structure with or
without furniture which point to effective physical control of the property occupied . If
the municipality does not act immediately(instanter) before the stage of control with
the required intention is achieved, then it cannot rely on counter-spoliation as it cannot
take the law into its own hands. It will then have to seek relief from the court, for
example by way of a mandament van spolie, an ordinary interdict, or pursue a remedy
under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998 (PIE).

[13] In the seminal judgment of Yeko v Qana (Yeko),7 this Court referred to:
‘. . . [S]elf-help if it concerns contra spoliation which is instanter resorted to, thus forming part
of res gestae in regard to the despoiler’s appropriation of possession, as would be the
immediate dispossession of a thief of stolen goods when he was caught in flagrante delicto. .
. The very e ssence of the remedy against spoliation is that the possession enjoyed by the
party who asks for the spoliation order must be established. As has so often been said by our
Courts the possession which must be proved is not possession in the juridical sense : it may
be enough if the holding by the applicant was with the intention of securing some benefit for
himself.’

[14] To re-affirm that counter-spoliation remains part of our law, this Court in Fischer
v Ramahlele (Fischer)8 stated that:
‘[L]and 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 c ircumstances to resort to
counter spoliation.’ (Emphasis added).

counter spoliation.’ (Emphasis added).

[15] In Residents of Setjwetla Informal Settlement v City of Johannesburg :

7 Yeko v Qana 1973 (4) SA 735 (A) at 379C-E.
8 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All
SA 395 (SCA) para 23.

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Department of Housing, Region E,9 the City of Johannesburg began to demolish the
informal structures three days after the occupiers had taken possession of the land
and commenced construction. The court found that the unlawful occupiers had
acquired possession of the shack sites and that this possession was perfected.
Therefore, the City of Johannesburg could not invoke counter-spoliation as a defence.
The court reasoned that the occupiers had commenced constructing shacks on the
respondent’s land; they had driven poles into the ground; perhaps wrapped corrugated
iron around some of those ; and perhaps fixed roo fing material on top of those. This
implied further that the occupiers moved around on the land while they were
constructing their structures and that their own movable assets were affixed with a
measure of permanence, so that it could afford them effectiv e protection against the
elements.

[16] This judgment was critici sed by academics for not address ing
counter- spoliation pertinently,10 and is of not much assistance on the issue before this
Court. However, the underlying principle remains; once a person had brought material
on the land to manifest their intention to derive some benefit from it, they may have
manifested their peaceful and undisturbed possession of the land and the original
breach of the peace would have been completed . In su ch instance, the instanter
requirement of counter-spoliation would fail. If the City failed to act instanter, it could
not thereafter successfully invoke counter-spoliation as a defence.

[17] Before us, counsel for the City submitted that the City was justified to counter
unlawful invasions by removing invaders without any order of court: (i) where persons
are in the process of seeking to unlawfully occupy land and it takes action to prevent
them from gaining access to the targeted land; (ii) where persons have gained access
to the land unlawfully and are in the process of erecting or completing structures on

to the land unlawfully and are in the process of erecting or completing structures on
the land and it takes action to prevent structures being erected or completed on the
land; and (iii) completed structures have been erected on the land and it is clear that

9 Residents of Setjwetla Informal Settlement v City of Johannesburg: Department of Housing, Region E
[2016] ZAGPJHC 202; 2017 (2) SA 516 (GJ) paras 11, 12 and 15.
10 J. Scott ‘The precarious position of a landowner vis-à-vis unlawful occupiers: common-law remedies
to the rescue?’ (2018) TSAR 2018:(1) 158 at 161. This view is also supported by Muller and M arais in
their article: ‘Reconsidering counter-spoliation as a common-law remedy in the eviction context in view
of the single-system-of-law principle’ 2020 TSAR 2020:(1) 103 at 110.

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such structures are unoccupied, and it takes steps to prevent the structures from being
occupied.

[18] Counsel submitted further that this was the case because counter -spoliation
has not been declared unconstitutional and referenced this to the judgment of this
Court in Fischer. He submitted that t o expect anything more means the City must
follow the mandament van spolie route, or an application in terms of PIE; either under
s 5 (the urgent application) or s 6, but that by the time the court grants the order, the
invaders would have settled on the land. Then the prerequisites of PIE will fall into
place. The City will be bound to , amongst others , first provide alternative
accommodation for the unlawful occupiers and consult and negotiate, establish
whether there are children and women who will be affected , and the many other
requirements as provided for in s 4 of PIE. That is more onerous and the City cannot
afford any of such options under its current budget. It has a long list of people waiting
for houses for the next 70 years.

[19] He submitted that on the issue of the discretion to be exercised by the City’s
delegates who carry out the evictions; they do so in an as humane as possible manner;
under trying and sometimes violent circumstances; and, the presumption must be that
their power will not be abused. And the courts must accept that they do so, bearing in
mind the warning the Constitutional Court issued in Minister of Health and Another v
New Clicks South Africa,11 that there was only limited scope for reviewing the exercise
of delegated powers on the grounds of ‘unreasonableness’.

[20] He contended that if this Court acknowledges that counter-spoliation remains
part of our law and this should be the end of the matter. The next enquiry must then
be, should the rule be applied a priori in each and every case regardless of the different
circumstances as the high court did on these facts, or rather on a case-by-case basis.

circumstances as the high court did on these facts, or rather on a case-by-case basis.
He contended that it should be on a case-by-case basis.

[21] Counsel for the Commission, and the second and third respondents, submitted
that Yeko remains authority to date; that once the occupiers brought building material

11 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14; 2006
(2) SA 311 (CC); 2006 (1) BCLR 1 (CC) para 104.

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onto the land and the City did not act instanter, the City could not thereafter invoke
counter-spoliation.

[22] Counsel pointed out one instance, amongst many others which are not
necessary to enumerate, that of Erf 5144 Kommetjie Township, Ocean View where
the City was not the owner and thus did not have the right to ‘evict’ anyone from that
piece of land. The occupiers had been on the land for over three months. Yet, the
City’s officials removed them without invoking PIE ’s strict requirements . Only
thereafter did the City obtain the consent of the lawful owner , the Ocean View
Development Trust, through its trustees, to have acted in the owner’s stead. He
contended that this anomaly pointed to the difficulty the City will always find itself in as
it tends to leave this important function to junior officials to exercise a discretion, which
involves balancing the socio -economic rights of vulnerable people in the position of
the unlawful occupiers in this case vis-a–vis the City with all its resources. T he City
has provided no guidelines to these officials to ensure that they do not abuse their
powers. The better option, so counsel contended, was to have the City and its officials
acting under the supervision of the courts, when acting in land invasion cases.

[23] Counsel for the fourth and fifth respondent supported the submissions of the
Commission and the other respondents. He submitted in his heads of argument, that
although the constitutional attack was abandoned, the respondents maintained that
the appeal was about what was a constitutionally appropriate response to what can
be interpreted as the lawlessness of the previous regime , under the Prevention of
Illegal Squatting Act 52 of 1951. This draconian piece of legislation which provided
sweeping measures to control the movement of black people in and around urban
areas, was long ousted in its entirety and replaced by progressive legislations. To allow

areas, was long ousted in its entirety and replaced by progressive legislations. To allow
structures to be removed forcibly would , he argued, allow the City to continue acting
as local authorities of those times did prior to the dismantling of those draconian and
humiliating laws.

[24] Counsel submitted that the approach the City wanted to adopt, that of ‘trust us’,
cannot be correct. This ‘trust us’ approach meant that the City should be left on its own
and without court supervision on how to respond to instances of unlawful occupation
of land - even when an invasion ha d become completed and amounted to ‘peaceful

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and undisturbed’ possession and/or a structure had become a home. That would be
the result if the City was to continue with its ‘demolitions by sight policy’ where its ALIU
demolishes what they determine, merely by sight, to be an unoccupied structure.

[25] Counsel argued that this approach is bedeviled by the wide exercise of
arbitrariness in the decisions of the City. In any event, considering the volatility of every
land invasion, where members of the ALIU and the land invaders clash , resultant
disputes should be resolved by a court of law. The City cannot be left to be judge and
executioner in its own case. Instead, a judicially supervised process of removal of
structures would not only be appropriate , but constitutionally mandated, so the
argument continued.

[26] He submitted that the affidavit of Mr Jason Clive Buchener (Mr Buchener), filed
on behalf of the City, did not explain how the City determines what is an occupied or
unoccupied structure, except by sight and in the subjective opinion of the ALIU staff.
The City is adamant that its staff know what is unoccupied and what is occupied ,
because they receive training. However, it did not take the court into its confidence
about what training it provides to them to determine whether a structure is occupied or
not, and whether any due process is observed when the ALIU decides to demolish a
structure.

[27] Counsel for the amicus curiae (amicus) accepted that counter -spoliation
remains a lawful remedy , that i s not unconstitutional, and, if applied strictly in
accordance with the requirements set out in Yeko, there would be no need to either
develop the common law or to declare it unconstitutional. He contended that by
bringing building material onto the land and commencing construction o f the informal
structures, the land occupiers physically manifested their peaceful and undisturbed
possession of the land and the original breach of the peace would have been

possession of the land and the original breach of the peace would have been
completed and the instanter requirement of counter-spoliation would have lapsed. In
other words, if the City or the despoiled failed to act instanter, they could not thereafter
invoke counter-spoliation as a defence. Consequently, any act of dispossession from
that stage would not be a defence against spoliation but would itself amount to an act
of spoliation.

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[28] Counsel for the amicus contended further that the judgment of the high court
accords with the values underpinning the Constitution, the right to dignity and the right
to housing . The Constitution makes no distinction between unlawful occupiers as
defined in progressive legislation such as PIE , and land invaders. Such an approach
would also take into account the socio -economic factors of the most vulnerable of
society. This approach, they submitted, ensures that the City will in all cases operate
within parameters determined by the judicial oversight of the courts, and not as the
City deemed fit, or at the whim of junior officials who have no regard for the plight of
marginalised people who have no resources to seek recourse from courts when the
City imposes its might on them, as it did in respect of the evictions under consideration.

[29] This approach is consistent with the underlying rationale of the mandament van
spolie, which is the prevention of self -help and the fostering of respect for the rule of
law. It would also encourage the establishment and maintenance of a regulated
society, as it limits the period and circumstances within which a party may take the law
into his/her own hands.13

[30] Applying the above principles to these facts, the question for determination is,
did the City satisfy the two requirements of counter -spoliation when the homeless
people moved onto its unoccupied land between April and July 2020 . In the founding
affidavit of the Commission, deposed to by Mr Andrew Christoffel Nissen (Mr Nissen)
dated 3 July 2020, he makes reference to what Mr Buchener, a senior field officer in
the ALIU ,14 stated under oath . It is important to quote what Mr Buchener stated
verbatim:
‘The members of the ALIU were present from the moment the demolition of structures began.
Each structure was personally inspected by us before it was demolished. Not a single structure

Each structure was personally inspected by us before it was demolished. Not a single structure
was occupied. None of the unlawful occupiers including the applicants have the protection of
section 26(3) of the Constitution of the Republic of South Africa , 1996, Act No 108 of 1996
(“the Constitution”) and the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, No. 19 of 1998 (“the PIE Act”) in so far as the property is concerned. Some of the
structures which were taken down by the contractor were complete and others were still in the
process of being erected. Some just had frames while others lacked roofs, doors and/or

13 Op cit fn 9 above para 17.
14 This was the same affidavit used in support of the City’s opposition to the relief sought by Ms Nkuthazo
Habile and others, in the urgent application brought in the high court.

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windows. All of the structures which were taken down at the property by the contractor were
either partially built or complete, but none were occupied. One could see that nobody occupied
the structures or that it constituted a home. We also saw people carrying items of furniture and
placing it in structures while we were present at the property. . .
The attempts to erect structures at the property on 8, 9, 11 and 12 April 2020 were part of an
orchestrated land grab. The City was able to counter spoliate and this was the only means at
its disposal to save the property from being unlawfully occupied. Any undertaking in the form
requested by the applicants will result in the City not being able to counter spoliate. This is
tantamount to giving the applicants free rein to unlawfully occupy the property while the City’s
hands are tied. Had the City not counter spoliated more land would have been lost to the City
in addition to those properties described in the affidavit of Pretorius. The structures demolished
at the property did not constitute a home within the meaning of the PIE Act or section 26(3) of
the Constitution. . .
Paragraph 6 of this letter [a reference to a letter by the applicants’ attorneys in that matter ]
makes the sweeping averment that “a demolition amounts to an eviction”. The statement is
not only nonsensical but not borne out by the facts of this matter. Several of the structures
demolished by the City at the property were partially built, unfit for habitation and none of the
structures were occupied. Self -evidently, no eviction took place . The deponent appears to
conflate a demolition with an eviction. I reiterate that no evictions occurred at the pro perty.
The structures that were demolished were unoccupied and did not constitute anyone’s home.
I have explained the presence of furniture or personal possessions at the property and these
averments are denied. The fact that a structure may contain an ite m of furniture or personal

averments are denied. The fact that a structure may contain an ite m of furniture or personal
possessions does not mean that it constitutes a home. It bears emphasis that land grabs occur
very quickly. Unlawful occupiers often go to great lengths in an attempt to establish that a
structure is occupied when in truth and in fact this is not the case. We saw furniture and other
possessions being placed into structures while we were busy with the demolition of
unoccupied structures on the above dates. These goods were later removed by the unlawful
occupiers and appear on some of the pictures. This was clearly orchestrated to in an attempt
to make out a case that an eviction had occurred. . .
It is denied that the structures demolished by the City at the property constituted homes.
The City was entitled to counter spoliate when the property was unlawfully invaded on the said
dates in April. It did not require an eviction order to do so.’ (Emphasis added).

[31] From this excerpt, and o n the City’s own admission , there were structures
already erected on the City’s land upon the AILU’s arrival on the land . They moved

15

onto the land to demolish them. This means the possessory element was already
completed. The City did not know for how long those structures were there. There was
no evidence that the alleged land invaders had just moved on to the land with some
materials, but that they had not yet commenced any construction, did not occupy, or
did not intend to occupy the structures found there. On the contrary, having regard to
the extent of completion of some of the structures, as narrated, if not homes as
contemplated in the PIE Act, the structures had assumed permanence and were of a
nature consistent only with an intention to occupy permanently, and the invaders were
therefore in peaceful possession.

[32] What is clear from Mr Buchener’s affidavit is that the demolition by the AILU
staff followed upon mere visual impression , in the exercise of their subjective
discretion, with no reference to any objective guidelines, or the guidance of superiors
perhaps more sensitive to the socio-economic circumstances of marginalised people.
Despite finding people occupying some of the structures put up on the City’s land, Mr
Buchener and the ALIU staff still dismantled those structures.

[33] In Mr Buchener’s own words, some of the structures were well-structured, had
furniture, but were, in his opinion , ‘unoccupied’. Other shacks that were demolished
were partially constructed. In other instances, as in the case of Erf 5144 Kommetjie
Township, Ocean View, as the City conceded, it was not the owner of the land from
which it removed the homeless people. It only sought the owner’s consent to act as it
did after the removal , to justify its unlawful conduct. In another instance, some
members of the police who assaulted some of the homeless people were
subsequently internally discipled. In the most glaring of the incidents, Mr Qolani was
dragged naked out of his well-structured shack, contradicting Mr Buchener’s sworn
declaration that the structures that were demolished were all unoccupied.

declaration that the structures that were demolished were all unoccupied.

[34] The picture below shows existing and complete structures being torn down. It
leaves no doubt that the City did not act instanter in the captured circumstances. The
occupants of the structures were removed from already erected structures, who, like
Mr Qolani, regarded them as their homes.

16



[35] Fischer16 made no definitive pronouncement on the constitutiona lity of
counter- spoliation. This is recognised where the learned Justices Wallis and Theron,
writing jointly for the unanimous Court, stated:
‘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.

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.’



16 Op cit fn 8 above paras 21 and 22.

17

[36] From the above it is clear, as the high court correctly held, that the problem lies
with the application of the principles of counter-spoliation by the City in the context of
land incursions/invasions . The appropriateness of the time within which to counter
spoliate, is left wholly within the discretion of the City’s employees and agents. This is
often capricious and arbitrary and cannot be legally countenanced. In Ngomane and
Others v City of Johannesburg Metropolitan Municipality17 this Court stated:
‘What is clear however, is that the confiscation and destruction of the applicants’ property was
a patent, arbitrary deprivation thereof and a breach of their right to privacy enshrined in s 14(c)
of the Constitution, ‘which includes the right not to have … their possessions seized’.
Similarly, on the facts in this appeal, the conduct of the City’s personnel did not only
constitute a violation of the occupants’ property rights in and to their belongings, but
also disrespectful and demeaning. This obviously caused them distress and was a
breach of their right to have their inherent dignity respected and protected.

[37] The City has a housing backlog which it must reduce in the next 70 years with
a limited budget and an overwhelming demand for housing. That, however, cannot
justify the City not satisfying the requirements of counter-spoliation if it wants to invoke
same. In the event that the City does not act instanter, as in this instance, it should
approach the courts to obtain remedies legally available to it. Furthermore, the City
must invest in training and equipping the ALIU and its relevant personnel with
sensitivity training, to recognise that people ’s rights should be respected and they
should not be abused during removals.

[38] In sum, and t o answer the questions postulated in the opening paragraph of
this judgment, at the level of general principle - a municipality , might be able to

this judgment, at the level of general principle - a municipality , might be able to
successfully counter-spoliate when homeless people invade its unoccupied land in
certain circumstances. It will be justified to do so, without resorting to the mandament
van spolie or an interdict or under PIE , because counter -spoliation is not
unconstitutional. It remains par t of our law until de termined otherwise. However, it
must do so instanter within a narrow window period , during which counter-spoliation
is legally permissible. The window closes and the recovery is no longer instanter when
the despoiler’s possession of the land is perfected. Thereafter, the City must not

17 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 21. (Citations omitted).

18

breach the right to privacy enshrined in s 14(c) of the Constitution, ‘which includes the
right of pers ons not to have their possessions seized without due process ’. The
conduct of the City’s ALIU and relevant personnel (including the members of the SAPS
and or SANDF under the instructions of the City) must also not be disrespectful and
demeaning, but protective of the unfortunate and vulnerable people’s rights to
dignity,18 which must accord with the spirit, purport and objects of the Bill of Rights.
Section 26 (3) of the Constitution expressly grants everyone the right not to be evicted
from their home, or have their home demolished, without an order of court made, after
considering the relevant circumstances.

[39] I would be remiss if I do not state the following. When the matter commenced
in the high court , the issue was raised whether it was not time in a constitutional
democracy to look at the question whether counter-spoliation should continue to be
permitted, considering its impact on various provisions of the Constitution. This is
against the background of progressive legislation post 1994, which is relevant in this
matter, such as PIE.

[40] Academics, including Professors Van der Walt, Muller and Marais and
Boggenpoel19 have written extensively on this subject. Amongst the proposals made
is that the definition of s 1 of PIE be read down to include invaders under the term
‘unlawful occupier(s)’. But that will have huge ramifications for other areas of the law,
including property law in general, and cannot be done without input from other
branches or agencies of the law, such as the Law Review Commission. It might also
require an attack on the constitutionality of PIE, which was not pursued in this case.
Ultimately the legislature may intervene of its own accord to, inter alia, change and
adapt PIE accordingly. Since these aspects were not addressed before the high court,
it would not be appropriate to determine them in this appeal. In the meantime, courts

it would not be appropriate to determine them in this appeal. In the meantime, courts
should deal with these matters on a case-by-case basis until those issues are properly
raised and dealt with fully, fairly and pertinently.


18 Section 10 of the Constitution of the Republic of South Africa, 1996.
19 A J van Der Walt ‘Property and Constitution’ (2012) at 19 – 24; Muller and Marais op cit at 103 and
Z T Boggenpoel ‘Can the journey affect the destination? A single system of law approach to property
remedies’ (2016) SAJHR 32 (1) at 71 – 86.

19

[41] Finally, the matter of costs. The amicus seeks costs on an attorney-and-client
scale against the City for opposing its application for intervention . As a general rule
costs follow the result or outcome. But a court may, in the exercise of its discretion, in
light of all the relevant facts and circumstances, deviate from this trite principle after
having heard the parties on the matter.

[42] The amicus applied to be joined to the proceedings before this Court on appeal.
Ultimately amici curiae are there to assist the court and ordinarily are not awarded
costs, as they are neither losers nor winners, bar exceptional circumstances, such as
where malice is present.20 The objection by the City to their joinder has not been shown
to be malicious or otherwise improper. Thus, the threshold has not been met.

[43] In the result, the following order issues.
The appeal is dismissed with costs, including the costs of two counsel where so
employed.



_______________________
B C MOCUMIE
JUDGE OF APPEAL


20 Hoffmann v South African Airways [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1211; [2000] 12
BLLR 1365 (CC) para 63.

20

Appearances

For the Appellant S Rosenberg SC and M Adhikari and
K Perumalsamy
Instructed by Fairbridges Wertheim Becker, Cape
Town
McIntyre & Van der Post,
Bloemfontein.

For the first, second and third Respondents N Arendse SC and E Webber
Instructed by Legal Resource Centre, Cape Town
Webbers Attorneys, Bloemfontein.

For the fourth and fifth Respondents T Ramogale and P Sokhela
Instructed by Ian Levitt Attorneys, Johannesburg
Lovius Block Inc, Bloemfontein.

For the Amicus Curiae J Brickhill
Instructed by Seri Law Clinic, Braamfontein
Webbers Attorneys, Bloemfontein.