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[2019] ZASCA 57
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Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another (734/2017) [2019] ZASCA 57; [2019] 3 All SA 69 (SCA); 2020 (1) SA 52 (SCA) (3 April 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 734/2017
In
the matter between:
STEVEN
NGOMANE FIRST
APPLICANT
GEORGE
MATHE SECOND
APPLICANT
PULE
MANKGE THIRD
APPLICANT
PAKISO
NDUNGWANE FOURTH
APPLICANT
SYDNEY
KHUMALO FIFTH
APPLICANT
MOREMI
TSHEPO
EVANS SIXTH
APPLICANT
GIFT
MTHIMKHULU SEVENTH
APPLICANT
ANNA
KHUMALO EIGHTH
APPLICANT
LERATO
JOSEPH MDONGWANE
NINTH
APPLICANT
MORRIS
MTHEMBU TENTH
APPLICANT
SBUSISO
NKOSI ELEVENTH
APPLICANT
DAVID
THLAPI TWELTH
APPLICANT
HLENGIWE
KHUMALO THIRTEENTH
APPLICANT
SEUN
MSIBI FOURTEENTH
APPLICANT
SIMON
MATHE FIFTEENTH
APPLICANT
THABO
MATHE SIXTEENTH
APPLICANT
THULANI
NGOZO SEVENTEENTH
APPLICANT
BUTI
MADUNA EIGHTEENTH
APPLICANT
MICHELLE
MOFOKENG NINETEENTH
APPLICANT
THAPELO
SEKWATI TWENTIETH
APPLICANT
JABULANI
THEO PHAKATHI TWENTY
FIRST APPLICANT
MATHEWS
MBANA TWENTY
SECOND APPLICANT
JACOB
THAMSANQA
GCISA TWENTY
THIRD APPLICANT
LERATO
NHLAPO TWENTY
FOURTH APPLICANT
EPHRAIM
MANDENGA TWENTY
FIFTH APPLICANT
EMMANUEL
NOVEMBER TWENTY
SIXTH APPLICANT
DOCTOR
SHOPE TWENTY
SEVENTH APPLICANT
and
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY FIRST
RESPONDENT
CHIEF
OF POLICE, JOHANNESBURG
METROPOLITAN
POLICE DEPARTMENT,
ZWELIBANZI
VELAPHI NYANDA N O SECOND
RESPONDENT
Neutral
citation
:
Ngomane
& others v City of Johannesburg Metropolitan Municipality &
another
(734/2017)
[2018] ZASCA 57
(03 April 2019)
Coram:
Maya P, Dambuza, Van der Merwe and
Schippers JJA and Nicholls AJA
Heard:
10 September 2018
Delivered:
3 April 2019
Summary:
Constitutional law –
ss 38 and 172 (1)(
a
)
and (
b
)
of the Constitution – municipality removing and destroying
property comprising personal effects and materials used to erect
overnight shelter belonging to the homeless applicants in a public
health law clean-up exercise – not an eviction –
applicants not entitled to
mandament
van spolie
or
mandatory substitution of the property – destruction of
property unlawful and a breach of applicants’ rights to
dignity, privacy and not to be deprived of their property –
declaration of the unlawfulness of the destruction of the applicants’
property and compensation therefor appropriate relief.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (R Sutherland J
sitting as a court of first instance):
1 The application
for leave to appeal and condonation for its late filing is granted.
2 The appeal is
upheld with costs including the costs of two counsel.
3 Paragraph 1 of the
order of the court a quo is set aside and replaced with the
following:
‘
(a) it is
declared that the destruction of the applicants’ property
listed in the applicants’ schedule of reported losses
annexed
to the founding affidavit, by the first respondent on 1 February
2017, was unconstitutional and unlawful.
(b) The first
respondent shall pay each applicant the sum of R1 500 as compensation
for the destruction of his or her property on
1 February 2017, within
30 calendar days of the date of this order.
(c) The respondents
shall pay the costs of the application, jointly and severally, the
one paying the other to be absolved.’
JUDGMENT
Maya
P
(Dambuza, Van der
Merwe, Schippers JJA and Nicholls AJA concurring):
[1]
The applicants are a group of destitute, homeless people who made a
home for themselves on a traffic island under the R31 highway
bridge
on End Street, between Durban and Meikle Streets, in the business
district of the City of Johannesburg Metropolitan Municipality
(the
City). They seek leave to appeal and condonation for the late filing
therefor, against the judgment of the Gauteng Local Division
of the
High Court, Johannesburg (R Sutherland J). The court a quo dismissed
their application for the return of their personal
belongings and
materials, alternatively to be provided with similar material and
possessions, confiscated by officials of the Johannesburg
Metropolitan Police Department (JMPD) from the traffic island, and
ancillary relief. The court a quo refused their subsequent
application for leave to appeal against that decision and, upon
further application to this Court, their application was referred
for
oral argument in terms of s 17(2)(
d
)
of the
Superior Courts Act 10 of 2013
.
[1]
[2]
According to the applicants, they had lived under the bridge for
significant periods of time and the majority of their group
for at
least two years. Twenty-two of their group were employed and obtained
income ranging from R 350 to R 1000 a month from collecting
recyclable material. They could not afford to pay rent for
accommodation and regarded the traffic island, which separates a busy
street with various trading businesses on either side, as their home
as they lived and stored their property on it. They alleged
that the
property comprised personal effects including food, mattresses,
blankets, clothing, money, identity documents and other
important
documents and various materials which they used to build makeshift
shelter under the bridge at night, such as cardboard
boxes, wooden
pallets and plastic sheeting. They used the plastic sheets and
cardboard boxes to construct their beds and the pallets
served as
temporary walls to demarcate each individual’s space, house
their belongings and provide them with some privacy.
Each
morning they would dismantle the makeshift structures, pack the
material and leave it and the rest of their belongings on
the traffic
island as they went about in search of food and work.
[3]
On the day in question, JMPD officials descended upon the traffic
island in a convoy of motor vehicles, which included municipal
waste
removal trucks. They hurled insults at the applicants, and kicked and
sprayed some of them with pepper spray in a bid to
drive them away
from the location. They then loaded all the applicants’
belongings on the trucks and took them away. The
officials had not
engaged with the applicants before the operation in any manner and
confiscated their belongings without the authorisation
of a court
order. The applicants further contended that the conduct of the
respondents’ officials constituted an eviction
from their homes
and breached their rights under ss 26(3) and 25(1) of the
Constitution,
[2]
not to have
their homes demolished without an order of court and not to be
deprived of their property unlawfully, respectively,
and their rights
to dignity and adequate shelter.
[4]
The respondents opposed the application. In an answering affidavit
filed by the City on their behalf, it explained that it had
an
ongoing challenge of displaced people, who resided on its streets,
many of them evicted from their communities as a result of
criminal
activity or drug addiction. To counter the problem, it established a
sub-unit of the Department of Social Development.
The sub-unit
conducted shelter management, skills development and drug
rehabilitation programmes, aimed at providing the displaced
people
with shelter, assist those with drug addictions and in trouble with
the law, reunite them with their families and ultimately
get them off
the streets. The sub-unit ran biweekly outreach programmes for the
displaced people in and around the traffic island
to inform and
educate them about the availability of municipal homeless shelters,
centres with ablution facilities and social workers
and opportunities
to improve their standard of living. One municipal shelter was in the
immediate vicinity of the traffic island
but required one to have a
South African identity document and pay a daily R8 fee to access it.
The displaced people were, however,
not interested in these services
as attested to by the head of the sub-unit.
[5]
The applicants’ property was removed during what the City and
the second respondent, the Chief of Police, Johannesburg
Metropolitan
Police Department, Zwelibanzi Velaphi Nyanda N O, described as ‘a
clean-up’ operation of the area conducted
pursuant to the
City’s by-laws.
[3]
The
operation was prompted by numerous complaints lodged with the City by
the various businesses trading around the traffic island
[4]
and members
of the public about the occupation of pavements designated for the
purpose of customer and public vehicle parking by
homeless people,
public defecation and urination on the pavements, excessive rubbish
and waste, public abuse of illicit drugs and
the disposal of used
syringes, theft, robberies and related crimes in the area. The
respondents denied that any eviction was committed
or that any
shelter was destroyed during the clean-up operation. They alleged
that their officials merely removed rubbish which
was found
unattended or abandoned and disposed of it in a landfill. The City
denied that any valuable personal items were removed
and explained
that its procedure during clean-up exercises which involved the
removal of people’s personal belongings required
the
preservation of any valuable items, which would be inventoried and
kept for collection by the owners.
[6]
It transpired that a good Samaritan, Mr Nigel Branken, had chanced
upon the incident and managed to record a video of part of
the
operation. The video footage was admitted into evidence. It showed
him remonstrating with the JMPD officials, telling them
that they
were removing ‘people’s possessions’ to which one
official responded that ‘these people are occupying
a space
which is not theirs’. The footage also showed the officials
indiscriminately gathering and throwing mattresses, blankets,
bulging
suitcases, bags and rucksacks into a truck without checking their
contents. However, the officials were not shown engaging
with anyone
else and merely went about removing the property. Nor did it appear
that there was anyone else who was interested in
the property at the
scene.
[7]
The court a quo found that the video footage established that the
JMPD officials, although not shown chasing away or threatening
anyone
as alleged by the applicants, were well aware that they were removing
‘domestic goods which would be the typical material
that
homeless people would be using’. Whilst the court accepted that
the JMPD officials did not inventory the property, it
was highly
sceptical of the claims for items such as cash, cell phones and
identity documents which one would normally keep on
their person and
hardly leave unattended on a public thoroughfare. The court rejected
the applicants’ claim that their shelters
were demolished as it
was their own version that they were dismantled every morning and on
that day too, and that the JMPD officials
merely removed the loose
materials they left on the traffic island. The court a quo then
dismissed the vindicatory claim on the
basis that the property in
issue was inadequately described and had, in any event, been
destroyed and could therefore not be returned.
[8]
The alternative claim was also given short shrift. Relying on a
judgment of this court,
Tswelopele
Non-Profit Organisation & others v City of Tshwane Metropolitan
Municipality & others
,
[5]
the court a quo held that
mandament
van spolie
did not entitle the dispossessed applicants to vindicate their lost
property by its substitution. The court a quo pointed out that
this
decision did not deprive them of a remedy as they could pursue a
damages claim even if such relief would not be viable having
regard
to the negligible value of their property. In the court’s view,
that practical consideration was not a denial of their
rights as the
scope of available relief was not limited to patrimonial loss.
[9]
Regarding the eviction claim, the court a quo found that the traffic
island was a public thoroughfare designated for the purpose
of
facilitating traffic and could not be equated with a ‘home’
or ‘land’ as envisaged in s 26 of the Constitution
and s
1 of the Prevention of Illegal Eviction and Unlawful Occupation of
Land Act 19 of 1998 (the PIE Act). The court reasoned
that ‘the
habitual act of sleeping rough on a traffic island in a “shelter”
put up and taken down each night
is not an act, which properly
construed, can constitute “occupation”’ for the
purposes of these provisions. And
where there was no occupation,
there could be no eviction. The court a quo concluded that the
actions of the respondents’
personnel did not constitute an
eviction of the applicants.
[10]
As to the alleged breach of the applicants’ right to dignity,
the court a quo found that the JMPD officials’
conduct in summarily discarding their property, no matter its
condition, ‘was a cynical and mean spirited act deserving of
censure’ and that if they acted in accordance with the
respondents’ policy then that policy had to be stopped.
Accordingly,
it made an extensive order,
[6]
calling upon
the City to show cause why certain procedures should not be followed
during the cleaning of public places to safeguard
personal belongings
removed in that process. The Rule Nisi was confirmed unopposed in due
course. But that order had no impact
on the relief sought by the
applicants. They also did not challenge the court a quo’s order
refusing their prayer raised
for the first time during argument under
the rubric of their prayer for ‘further and alternative
relief’’ –
to interdict the City from threatening,
harassing and dealing with them directly.
[11]
On appeal before us, the applicants characterised the issues as
follows: whether (a) the traffic island they occupied constituted
‘land’ as envisaged in the PIE Act and the temporary
structures constituted their home and shelter; (b) the clean-up
operation conducted by the respondents constituted an eviction from
land to which the provisions of the PIE Act apply; (c) they
ought to
have been granted a constitutional remedy similar to that crafted in
the case of
Tswelopele
ordering the return of goods and materials similar to those
confiscated by the City and (d) whether they should be awarded
punitive
constitutional damages (which was raised for the first time
in this Court).
[12]
The essence of the applicants’ contentions was that the traffic
island was their ‘place of residence or abode’
and their
home within the meaning of s 26(3) of the Constitution from which
they had been unlawfully evicted because they had occupied
it for
periods between two and five years, albeit using it as overnight
shelter. We were urged to interpret the PIE Act and its
definition of
‘land’ purposively to include the traffic island. It was
further contended that their plastic sheets,
cardboard boxes and
wooden pallets fell within the definition of ‘building’
or ‘structure’ in s 1 of the
PIE Act on a purposive
construction, and that their removal constituted a demolition of
their homes or structures and an unlawful
eviction from their homes.
It was also argued that they could not be removed from the traffic
island until the City provided them
with alternative accommodation
and that they were entitled to constitutional relief.
[13]
I accept the court a quo’s findings regarding the events of 1
February 2017 as sound. The invaluable and indisputable
evidence
presented by the video footage put paid to any possible dispute of
fact. It established that the JMPD officials confiscated
various
domestic goods which they found stored under the bridge that were
clearly not rubble. Mr Branken’s running commentary
throughout
the recording, chastising the officials for callously removing poor
people’s belongings, and the response which
his comments
elicited from one of the officials, that the owners of the goods had
no right to occupy that space, indeed made clear
that the officials
knew that homeless people lived there and owned the goods they were
removing. The respondents’ denials
in this regard and the
allegations regarding inventory taking of valuable property are
rendered completely untenable in the circumstances
and may be
rejected out of hand. The footage also showed, as observed by the
court a quo, that no attempt at all was made by the
officials to
check the contents of the bags. The goods were simply collected and
summarily thrown into the back of the truck. The
footage further
established that no ‘structures’ of any sort were
demolished and no one was assaulted or ill-treated
in any manner
during the operation.
[14]
It is against this factual background that the applicants’
contentions must be considered. The respondents’ critical
concession regarding the unlawfulness of the removal and destruction
of the property was a strong indication that the application
for
leave to appeal was not without merit and the applicants gave a
satisfactory explanation for their delay in launching it. It
is
convenient to deal with the application and the merits of the case
together.
[15]
The applicants sought no relief in terms of the PIE Act. Strictly
speaking, therefore, their persistent contentions regarding
the
alleged destruction of their homes without an order of court and
eviction, in their founding affidavit and in argument both
in the
court a quo and on appeal before us, bear no relevance in the matter.
However, I think it expedient to deal with the contentions,
albeit
very briefly, to dispel the applicants’ misapprehension
relating to the protections provided by the PIE Act in light
of their
belated claim for constitutional damages.
[16]
In terms of s 1 of the PIE Act, ‘unless the context indicates
otherwise … ‘’building or structure”
includes any hut, shack, tent or similar structure or any other form
of temporary or permanent dwelling or shelter’.
According
to the Oxford English Dictionary, a building or structure is a
‘construction, edifice, erection or other object
constructed
from several parts or material put together … that has a roof
and walls’. To ‘build’ envisages
an act of ‘putting
up, setting together, assembly, creating or manufacture’. In
this case, the JMPD officials found
and took away a pile of loose
wooden pallets, cardboard boxes and plastic sheets at the traffic
island. Evidently, not even the
most generous interpretation of the
words ‘building or structure’, temporary or permanent,
can lead to the conclusion
that the material confiscated falls within
their meaning. There were simply no buildings or structures that
could be demolished
and no demolition occurred.
[17]
There was, similarly, no eviction. It is therefore not necessary to
decide whether a public thoroughfare such as the traffic
island
,
which is demarcated to provide parking for motor vehicles in the
heart of a busy business district, is equivalent to ‘vacant
land’ or a ‘public park’ and whether habitually
sleeping on it may constitute ‘occupation’ for purposes
of the PIE Act.
[18]
The matter does not end there, however. Having established that the
applicants’ property was unlawfully destroyed, what
remains is
whether they may be granted any relief in these proceedings and, if
so, to ascertain the extent of the harm they suffered.
The
applicants sought an order directing the respondents to return their
property and shelter material; alternatively that
they be provided
with similar material and possessions. In this regard the court a
quo, in my view, correctly held that the applicants
could not invoke
the
mandament
van spolie.
A
spoliation order is a preliminary and provisional possessory remedy
that is granted on the assumption that the property in issue
in fact
exists and may be awarded in due course to the properly entitled
party; it cannot be granted if the property no longer
exists as a
remedy to replace it as possession cannot be restored by
substitution.
[7]
[19]
This Court eloquently reiterated this principle as follows in
Tswelopele
:
[8]
‘
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
reconstructed 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)
.
. . . 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.’
[20]
The court in
Tswelopele
,
however, crafted a constitutional remedy for the reconstruction of
the destroyed structures because the other possible alternative
remedies, such as placing the applicants on the list for emergency
housing assistance, would ‘not attain the simultaneously
constitutional and individual objectives that re-construction of
their shelters would achieve’. For these reasons, an order
mandating substitution of the unlawfully destroyed property is
inappropriate in this case.
[21]
What is clear however, is that the confiscation and destruction of
the applicants’ property was a patent, arbitrary deprivation
thereof
[9]
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’. The conduct of the respondents’
personnel was not only a violation of the applicants’ property
rights in 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.
[10]
[22]
In the circumstances, the respondents’ conduct must be declared
inconsistent with the Constitution and therefore unlawful,
as
required by s 172(1)(
a
)
thereof.
[11]
This finding
entitles the applicants to appropriate relief for the violation of
their fundamental rights as envisaged in s 38 of
the
Constitution.
[12]
As to
what constitutes ‘appropriate relief’, the Constitutional
Court the Constitutional Court said in
Fose
[13]
:
‘
It is left to
the courts to decide what would be appropriate relief in any
particular case. Appropriate relief will in essence be
relief that is
required to protect and enforce the Constitution. Depending on the
circumstances of each particular case the relief
may be a declaration
of rights, an interdict, a
mandamus
or such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If
it is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these all-important
rights.’
And
at para [69]:
‘
[T]his Court
has a particular duty to ensure that, within the bounds of the
Constitution, effective relief be granted for the infringement
of any
of the rights entrenched in it… Particularly in a country
where so few have the means to enforce their rights through
the
courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched
right
has occurred, it be effectively vindicated. The courts have a
particular responsibility in this regard and are obliged to
“forge
new tools” and shape innovative remedies, if needs be, to
achieve that goal.’
[23]
Although the applicants sought only the return of their property, it
bears mention that a claimant in respect of a constitutional
breach
that has been established is not necessarily bound to the formulation
of the relief originally sought or the manner in which
it was
presented or argued.
[14]
Thus,
it
matters
not that the applicants sought to vindicate their constitutional
rights for the first time in this Court.
[24]
As the court a quo observed, the applicants’ property was not
sufficiently described to enable the respondents to replace
it with
similar goods, or place a reliable value on the property. In this
regard the schedule attached to the founding affidavit
listed the
property confiscated simply as ‘mattress’,
‘cosmetics/toiletries’, ‘groceries’,
’clothes’, ‘baby clothes’, ‘blankets’,
‘cell phone’, ‘books’, ‘toys
for sale’,
‘tools to fix trolley’, ‘present for mother’
and ‘medicine/treatment’ without
actually specifying
those items and their worth. Apart from the vague description of the
property, it is extremely difficult to
place a commercial value on
it. For example, six mattresses, various items of clothing and
blankets (probably extensively used
with no commercial value) were
removed, but these items were very valuable to their owners, and all
that they possessed. As stated
in the founding affidavit:
‘
Our
belongings are meagre and our homes may appear ramshackle, but this
is all we have, and this is what affords us the only bit
of dignity
which we enjoy’.
[25]
In light of these facts, I do not think that the applicants should be
left to pursue the ordinary remedy in the form of a damages
claim as
suggested by the court a quo. They lamented the practical
difficulties posed by this route, which were acknowledged by
the
court itself. Instituting a damages claim would involve them in
costly and time-consuming civil litigation in respect
of property,
which although valuable to them, is otherwise mostly of trifling
commercial value. The undisputed evidence is that
many of the
applicants daily search for work and collect recyclable materials,
which they sell in order to survive. They would
be hindered in this
if they were required to attend court proceedings. They have no money
for transport to attend court. And for
the very reason that it would
not be possible for them to prove the market value of the property
destroyed in the conventional
way, an action for damages is not an
appropriate remedy. Such an action is likely to fail or result in a
nominal award of damages.
[26]
During argument before us counsel for the applicants indicated that
they would be willing to accept a standard, nominal amount
of R 1 500
for each applicant, as compensation for the loss of their property
and the wrong they have suffered. At this
point I should
mention that the plastic sheets, cardboard boxes and wooden pallets
were not listed in the schedule as the applicants
confirmed during
argument that those materials, which have no monetary value, were
easy to scavenge and would immediately have
been replaced by them.
Thus no compensation was sought for these materials.
[27]
The respondents however were not willing to accede to the applicants’
proposal. The amount of R 1 500 for
each applicant, R
40 500, is not a large sum of money. But, in my view, it
constitutes appropriate relief in the specific
circumstances of this
case. It will vindicate the Constitution and protect the applicants
and others similarly situated against
violations of their rights to
dignity and property in the manner envisaged in
Fose
.
[15]
This
is particularly so, given the applicants’ willingness to accept
this amount as redress for the wrong they have suffered;
the
declaratory order and costs award issued below; and the order by the
court a quo in relation to the removal by the City of
property of
homeless people from public places (which hopefully in future will
have the desired effect and prevent a recurrence
of conduct of the
kind in question).
[28]
Accordingly, the following order is made:
1 The application
for leave to appeal and condonation for its late filing is granted.
2 The appeal is
upheld with costs including the costs of two counsel.
3 Paragraph 1 of the
order of the court a quo is set aside and replaced with the
following:
‘
(a) it is
declared that destruction of the applicants’ property, listed
in the applicants’ schedule of reported losses
annexed to the
founding affidavit, by the first respondent on 1 February 2017, was
unconstitutional and unlawful.
(b) The first
respondent shall pay each applicant the sum of R1 500 as compensation
for the destruction of his or her property on
1 February 2017, within
30 calendar days of the date of this order.
(c) The respondents
shall pay the costs of the application, jointly and severally, the
one paying the other to be absolved.’
_____________________________________________
MM
Maya
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES:
APPLICANTS:
A De Vos (with NS Mteto)
Instructed
by: Lawyers for Human Rights, Johannesburg
Webbers
Attorneys, Bloemfontein
RESPONDENTS:
C Georgiades SC (with R Scholtz)
Instructed
by: Molefe Knight Inc Attorneys, Johannesburg
Molefe
Knight Inc Attorneys, Bloemfontein
[1]
The
section reads:
‘
The
judges considering an application referred to in paragraph
(b)
may dispose of the application without the hearing of oral argument,
but may, if they are of the opinion that the circumstances
so
require, order that it be argued before them at a time and place
appointed, and may, whether or not they have so ordered,
grant or
refuse the application or refer it to the court for consideration.’
In
terms of s 17(2)
(b)
‘[i]f leave to appeal in terms of paragraph
(a)
is refused [ie by the judge or judges against whose decision an
appeal is to be heard], it may be granted by the Supreme Court
of
Appeal on application filed with the registrar of that court within
one month after such refusal
.
. . ’.
[2]
In
terms of s 25(1) of the Constitution ‘[n]o one may be deprived
of property except in terms of law of general application,
and no
law may permit arbitrary deprivation of property’. And s 26(3)
of the Constitution provides that ‘[n]o 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.’
[3]
The
City of Johannesburg Metropolitan Municipality Public Health By-Laws
(Published under Notice No. 830 in Gauteng Provincial
Gazette
Extraordinary No 179 dated 21 May 2004).
[4]
Mr
Byron Beedle,
the
owner of a wholesale and distribution entity, Trans Tool
Distributors (Pty) Ltd, situated directly adjacent to the traffic
island, which had traded there for about 80 years, filed an
affidavit confirming his complaint and the intolerable goings-on
of
the homeless people living on the island.
[5]
Tswelopele
Non-Profit Organisation & others v City of Tshwane Metropolitan
Municipality & others
2007
(6) SA 511
(SCA) paras 20-26.
[6]
The order
read:
‘
2. a Rule
Nisi is issued calling upon the Respondents to show cause on 26
th
of May 2017 why
an
order in the
following
terms should not be made:
2.1 whenever the
officials employed by the Respondents, in the execution of any
lawful action to enforce the by-laws remove material
from a public
place, such officials shall compose an inventory of every item so
removed, save where it is manifest that the item
is waste material.
2.2 the officials
shall photograph all material removed and record the place, date,
and time of removal and record it by a cross
reference to the
inventory.
2.3 officials
deployed to perform the exercise shall be clearly identifiable as
officials of the First Respondent, and a log shall
be kept of the
name of every official who is present at every such exercise.
2.4 when intent on
removing material from a public place, officials shall make
reasonable enquiries in the immediate vicinity
as to the presence of
possible claimants of the material sought to be removed, and if they
can be located, and their identity
confirmed, and they can
demonstrate, convincingly, that any item is their belongings, they
shall:
2.4.1 be put in
possession of all items that they are able to carry away.
2.4.2 be invited to
call at a designated place during office hours to collect the
balance of their claimed possessions, which
shall, in the inventory,
be so recorded, and the items tagged.
2.5 all such items
collected shall be kept in a designated place for not less than 30
days.
2.6 a notice shall
be displayed at the place from which the materials were taken
informing whomsoever is concerned where the material
is being kept,
for how long, and the procedure to retrieve any items, the name of
the official responsible for the safekeeping
of the material, and
that person’s telephone number and email address.
2.7 a report shall
be furnished to Sutherland J, 90 days after this order is issued, by
the Second Respondent and by the chief
legal adviser of the First
Respondent, supported on affidavit, listing the number of such
exercises carried out, and accounting
fully for the orders herein
set out having been effectively implemented, and if appropriate,
Sutherland J shall direct that further
reports shall be furnished.
2.8 a copy of the
reports shall at the same time be furnished to Lawyers for Human
Rights.
3. Paragraphs 2.1
to 2.6 shall operate as an interim order, pending the return day.’
[7]
Rikhotso
v Northcliff Ceramics (Pty) Ltd & others
1997
(1) SA 526
(W) at 534 D.
[8]
Paras 24 and
26.
[9]
In
breach of s 25(1) of the Constitution.
[10]
Section
10 of the Constitution.
[11]
Section
172(1)
(a)
and
(b)
of the Constitution empowers a court ‘deciding a
constitutional matter within its power . . . must declare that
any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency’.
[12]
Section 38
of the Constitution provides:
‘
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.’
[13]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) paras 18 and 19.
[14]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici Curiae);
President of the Republic of South Africa & others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre, Amici
Curiae)
2004
(6) SA 40
(SCA) para 18;
Carmichele
v Minister of Safety and Security & another (Centre for
Applied Legal Studies intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC);
2001 (10) BCLR 995
(CC);
Bannatyne
v Bannatyne (Commission for Gender Equality, amicus curiae)
[2002] ZACC 31
;
2003
(2) SA 363
(CC);
2003 (2) BCLR 111
(CC);
President
of the Republic of South Africa & another v Modderklip Boedery
(Pty) Ltd (Agri SA & others, Amici Curiae)
[2005] ZACC 5
;
2005
(5) SA 3
(CC);
2005 (8) BCLR 786
(CC) para 53.
[15]
See fn 11
.