THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 988/2024
and 831/2024
In the matter between:
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY FIRST APPELLANT
THE ILLEGAL OCCUPIERS OF THE SECOND APPELLANT
REMAINING EXTENT OF PORTION 34
OF THE FARM KAMEELZYNKRAAL 547 JR
and
SUMMER SEASON TRADING 63 (PTY) LTD RESPONDENT
Neutral Citation: City of Tshwane Metropolitan Municipality and Another v Summer
Season Trading 63 (Pty) Ltd (988/2024 and 831/2024 ) [2026] ZASCA 81 (29 May
2026).
Coram: HUGHES, GOOSEN and MOLEFE JJA and KUBUSHI and
CLOETE AJJA
Heard: 12 November 2025
Delivered: 29 May 2026
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Summary: Law of Property – unlawful occupation – eviction – expropriation –
Expropriation Act 63 of 1975 – expropriation of property that formed the subject of the
eviction order – invalidity of the expropriation process – date of eviction confirmed.
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Mooki AJ sitting as court
of first instance):
1. Save to the extent set out below, the appeal is dismissed.
2. The order of the high court is amended by the deletion of paragraph s 7 and 8
thereof and the substitution of paragraph 9 with the following:
‘9. The first respondent is ordered to complete the relocation of the second
respondent within one year of the date of this judgment.’
3. The first appellant is ordered to pay the costs of the appeal.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Molefe JA (Hughes and Goosen JJA and Kubushi and Cloete AJJA concurring):
[1] This is an appeal against an order of the Gauteng Division of the High Court,
Pretoria (the high court) , made in two interrelated matters involving the same parties.
The applications were not consolidated but were heard together. The first appellant, City
of Tshwane Metropolitan Municipality (the City), appeals against orders reviewing and
setting aside a notice to expropriate the Remaining Extent of Portion 34 of the farm
Kameellzynkraal 547 JR, district Bronkhorstspruit (the property) owned by the
respondent, Summer Season Trading 63 (Pty) Ltd (Summer Season). The second
appellant, the Illegal Occupiers of the property (the occupiers), appeal an order
dismissing their counter -application in the review and orders made in the eviction
application requiring them to be relocated within a specified time period. The appeal is
with the leave of this Court.
[2] The property, which is situated on higher lying ground adjacent to the Klipkop
nature conservancy, is located within what was previously the Kungwini Municipality
(the municipality), which was later incorporated into the City in 2011.
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[3] The matter has a long history of litigation dating back to 2003. In 2003, Mr Ben
Gomeni (Mr Gomeni) owned the property, which was then vacant. He sought to invite
people to settle on the property. Owners of land in the vicinity of the property, upon
seeing a truck offloading building materials onto the property, instituted urgent
proceedings against Mr Gomeni to stop the occupation. The high court (per Webster J)
granted a rule nisi on 25 April 2003, which was confirmed on 3 November 2004 (per
Sithole AJ). Despite being aware of the order, the municipality permitted people to settle
on the property , and the number of occupiers increased dramatically. The informal
settlement was styled Kanana Village by the occupiers.
[4] Summer Season purchased the property in October 2006 and attempted to
negotiate with the municipality regarding the relocation of the occupiers. On
21 June 2007, the municipality wrote to Summer Season stating that it would oppose
any attempt to evict any of the occupiers. On 18 December 2007, the municipality issued
a notice of expropriation in respect of the property. Summer Season launched a review
application in the high court to set aside the expropriation notice. The application was
set down for hearing in November 2009 . The municipality agreed to an order setting
aside the expropriation notice, which was granted on 3 November 2009.
[5] The informal settlement continued to grow, and new shacks were erected on the
property despite existing court orders. The municipality also installed water tanks and
ablution facilities on the property.
The eviction proceedings
[6] On 5 May 2011, Summer Season instituted eviction proceedings , under case
number 25597/2011, against the occupiers. The high court, (per Muller AJ) found that
the occupiers were unlawfully occupying the property and that their unlawful occupation
be terminated. The court concluded that the rights of the occupiers must yield to the
be terminated. The court concluded that the rights of the occupiers must yield to the
property rights of the owners and that it was just and equitable to evict the occupiers.
On 30 April 2013, the eviction order was granted. In addition, the high court ordered the
City (which had then become the municipality’s successor) to take all necessary steps
to provide alternative accommodation for the occupiers. It ordered t he City to file a
detailed report on or before 15 June 2013, on steps taken to obtain suitable land for the
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purposes of the relocation of the occupiers from the property. The application was
postponed sine die for the determination of a suitable date for relocation.
[7] The City and the occupiers sought leave to appeal the eviction and relocation
orders. On 19 July 2013 , the high court refused leave to appeal. Aggrieved, the City
applied to this Court for leave to appeal. On 13 December 2013, this Court refused
leave to appeal, and the Constitutional Court refused leave to appeal on 14 May 2014.
The eviction and relocation orders were, accordingly, final and binding upon the City
and the occupiers. On 1 2 January 2015, the City filed its report in t he eviction
application. The report stated that although the property is not suitable for permanent
development, it is sufficient to temporarily accommodate the occupiers, and that it would
expropriate the property for that reason.
The expropriation proceedings
[8] On 24 March 2014, the City informed Summer Season that it intended to settle
the occupiers on the property and was contemplating expropriation of the property . It
relied upon s 79(24)( a)(i) of the Local Government Ordinance, 1939 (the Ordinance),
read with s 5 of the Expropriation Act 63 of 1975 (the Expropriation Act). It stated that
the expropriation was for a public purpose. It invited Summer Season to make
representations regarding the intended expropriation.
[9] Summer Season made r epresentations on 4 June 2014, objecting to the
intended expropriation on several grounds. On 10 March 2015, the City delivered to
Summer Season a notice of expropriation of the property, effective from 11 March 2015
(the 2015 expropriation notice). In response to the notice, Summer Season launched its
review application under case number 225 57/2015. This review application is the
subject of the present appeal.
[10] On 29 October 2018, the City delivered two documents to Summer Season. The
first document informed Summer Season that the City was withdrawing the 2015
first document informed Summer Season that the City was withdrawing the 2015
expropriation notice in terms of s 23(1) of the Expropriation Act. The second was a new
notice of expropriation, informing Summer Season that the property was expropriated
with immediate effect (the 2018 expropriation notice).
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[11] Summer Season obtained leave to amend its notice of motion in the review
application in terms of rule 28 of the Uniform Rules of Court . The amendment
incorporated a challenge to the unlawful withdrawal of the 2015 expropriation notice and
the validity of the City’s 2018 expropriation notice. It filed supplementary affidavits
addressing the additional challenge.
[12] The parties agreed that the review and eviction applications be set down for a
joint hearing. The latter, to determine the date of relocation to the property identified for
relocation. The two applications were heard on 5 and 6 September 2023, by Mooki AJ.
In the high court
[13] Summer Season’s grounds of review in the high court were inter alia that:
(a) Section 79(24)(a)(i) of the Ordinance read with s 5 of the Expropriation
Act was not a lawful basis for the expropriation since those provisions do
not confer the power to expropriate property. It contended that s 9(3) of
the Housing Act 107 of 1997 (the Housing Act) is the on ly statute which
would permit the City to expropriate the property for the purpose stated in
the notice of expropriation. No reliance was placed on the Housing Act;
(b) The City’s Council had not resolved to expropriate the property; and
(c) The expropriation was carried out for an ulterior motive and purpose, was
arbitrary and capricious, contravened the rule of law, and was intended to
avoid the court order evicting the occupiers from the property.
[14] The occupiers had launched a conditional counterclaim in the review application
seeking just and equitable relief in terms of s 172(1)(b) of the Constitution. They sought
to be permitted to remain on the property . In the alternative, they sought an order that
the City be directed to start the expropriation process de novo and to comply with the
constitutional and legislative requirements for expropriation.
[15] The City did not defend the 2015 expropriation notice, which it withdrew for want
[15] The City did not defend the 2015 expropriation notice, which it withdrew for want
of compliance with the Expropriation Act. It accepted that the 2018 expropriation notice
would have no legal foundation, should the withdrawal of the 2015 expropriation notice
be found to be contrary to the law. It contended, however, that the withdrawal of the
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2015 expropriation notice renders its review moot . It stated that it will start the
expropriation process afresh should the 2018 expropriation notice be set aside.
Regarding the eviction order, the City contended that the subsequent expropriations
superseded the eviction order.
[16] On 31 October 2023, the high court reviewed and set aside the 2015
expropriation notice and declared the 2018 expropriation notice invalid. The court also
dismissed the occupiers’ counterclaim and enforced the eviction order. The City was
ordered to reloca te the persons in occupation of the property to portions of the Farm
370 Donkerhoek JR (Pretoria), owned by the City, and to complete the relocation on or
before 30 October 2024.
The issues before this Court
[17] The appeal calls for consideration of the following issues:
(a) Whether the 2018 expropriation notice constitutes a valid and lawful exercise of
the City’s power to expropriate land.
(b) If so, whether the expropriation is permitted in light of the extant order evicting
the occupiers and requiring their relocation.
(c) If not, whether a just and equitable remedy is available to the occupiers to permit
them to remain on the property.
Legislative Framework
[18] All expropriations occur against the background of s 25 of the Constitution 1
which, in relevant part, reads as follows:
‘(1) No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application-
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which
have either been agreed to by those affected or decided or approved by a court.’
1 The Constitution of the Republic of South Africa, 1996.
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[19] In First National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services and Another,2 the Constitutional Court stated that:
‘“[T]he meaning of s 25 has to be determined, in each specific case, within an interpretative
framework that takes into cognisance of the inevitable tensions which characterise the operation
of the property clauses. This tension between individual rights and social responsibilities has to
be the guiding principle in terms of which the section is analysed, interpreted and applied in
every individual case”.
The purpose of s 25 has to be seen both as protecting existing priv ate property rights as well
as serving the public interest, mainly in the sphere of land reform but not limited thereto, and
also as striking a proportionate balance between these two functions.’
[20] The Expropriation Act is the principal legislation which confers authority to and
regulates the process of expropriation of land. In terms of s 2, the power is conferred
upon the Minister of Public Works who may exercise the power on behalf of certain
specified entities.3 Section 5, which is presently relevant, deals with expropriation at the
instance of a local authority. It states that:
‘(1) If a local authority has the power to expropriate property or to take the right to use property
temporarily, such power may only be exercised, mutatis m utandis, in accordance with the
provisions of this Act.
(2) For the purposes of the application of subsection (1) any reference in this Act to the Minister
and the State shall be construed as a reference to the local authority concerned.’
(Emphasis added).
[21] If a local authority exercises the power to expropriate property, it is required to
comply with the provisions of the Expropriation Act. In this regard s 7 provides:
‘(1) If the Minister has decided to expropriate, or to take the right to use temporarily, any property
in terms of the provisions of section 2, he shall, subject to the provisions of subsection (5), cause
to be served upon the owner in question an appropriate notice in accordance with the provisions
of subsection (3).
…
(3) Subject to the provisions of subsection (5), the Minister shall cause the notice of
expropriation and all other notices and documents in connection therewith to be served by
2 First National Bank of SA Ltd t/a Wesbank v Commissioner , South African Revenue Services and
Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA
768 (CC); 2002 (7) BCLR 702 (CC); 64 SATC 471 (CC) para 50.
3 Section 3(2) of the Expropriation Act.
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causing the original or a true copy thereof to be delivered or tendered or sent by registered post
to the person in question.’
[22] Once an expropriation has commenced by notice of expropriation, s 23 applies
where the Minister has d eemed it expedient to withdraw an expropriation of property .
Subsection (1) provides that an expropriation shall not be withdrawn ‘(a) after the
expiration of three months after the date of expropriation, except with the written consent
of the owner in question’.4
[23] Section 79(24) of the Ordinance, upon which the City relied, provides that:
‘The Council may do all or any of the following things namely –
(24)(a) Subject to the succeeding paragraphs –
(i) hire, purchase, expropriate or in any other manner acquire any movable or immov able
property … for the performance or discharge of any function which the council is in terms of any
law authorised or required to perform or discharge’. (Emphasis added).
[24] Section 9 of the Housing Act stipulates that:
‘(1) Every municipality must, as part of the municipality’s process of integrated development
planning, take all reasonable and necessary steps within the framework of national and
provincial housing legislation and policy to-
(a) ensure that –
(i) the inhabitants of its area of jurisdiction have access to adequate housing on a
progressive basis;
(ii) conditions not conducive to the health and safety of the inhabitants of its area of
jurisdiction and prevented or removed;
(iii) services in respect of water, sanitation, electricity, roads, stormwater drainage and
transport are provided in a manner which is economically efficient’.
[25] Section 9(3) of the Housing Act confers upon a municipality the power to
expropriate land for the purposes of housing development. It provides that:
‘(a) A municipality may by notice in the Provincial Gazette expropriate any land required by it for
the purposes of housing development in terms of any national housing programme, if –
the purposes of housing development in terms of any national housing programme, if –
4 Section 23(1)(a) of the Expropriation Act.
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(i) it is unable to purchase the land on reasonable terms through negotiation with the
owner thereof;
(ii) it has obtained the permission of the MEC to expropriate such land before the notice
of expropriation is published in the Provincial Gazette; and
(iii) such notice of expropriation is published within six months of the date on which the
permission of the MEC was granted.’
Submissions
The City
[26] The City’s submissions in its heads of argument were that the high court erred in
finding that:
(a) the withdrawal of the 2015 expropriation notice did not comply with s 23(1) of the
Expropriation Act;
(b) the City was not authorised by s 79(24)(1)(a) of the Ordinance, read with s 5 of the
Expropriation Act to expropriate the property; and
(c) the City had to comply with s 9(3)(a) of the Housing Act as the only legislation that
empowered the expropriation of the property for housing purposes.
[27] At the hearing of the appeal, counsel for the City conceded that neither the 2015
nor the 2018 expropriation notices could succeed and withdrew the submission that the
high court erred in ruling them invalid. Counsel, however, submitted that the high court
incorrectly enforced the eviction order against the occupiers, granted almost 10 years
ago by Muller AJ, without sufficient evidence. It was argued that the high court did not
obtain further affidavits regarding the current welfare of the occupiers; refused to accede
to an invitation to conduct an inspection in loco to see how the settlement had grown;
found that the eviction order pre cluded the City from expropriating the property; and
found that the City’s expropriation of the property was intended to circumvent the
eviction, thereby ordering a punitive costs order against the City.
[28] Counsel submitted that the matter should be remitte d to the high court, with the
City providing sufficient evidence to show that the eviction would entail the massive
City providing sufficient evidence to show that the eviction would entail the massive
relocation of a well-established community, which would be severely detrimental to the
community. Counsel submitted a number of factors that had to be taken into account:
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(a) the occupiers have formed themselves into a settled Kanana village and built homes
for themselves; (b) they are working on the surrounding farms with some conducting
informal businesses; and (c) there are schools for the children, a clinic for the sick and
the elderly, and a church for the community.
The Occupiers
[29] Counsel for the occupiers submitted that Summer Season purchased the
property after the occupiers’ settlement, for the sole purpose of evicting the community,
and that Summer Season has no use for the land. Counsel, however, conceded that in
both instances when the City attempted to expropriate the property, the process
followed was procedurally flawed.
[30] It was argued that, as the matter concerns a direct challenge to the validity of the
City’s expropriation of the property, the occupiers are legally entitled to the just and
equitable relief they seek. Firstly, Counsel contended that there was no authority for the
proposition that an expropriation may not occur if there was a pre-existing unlawful use
and occupation of land. In this regard, reliance was placed on Staufen Investment (Pty)
Ltd v Minister of Public Works and Others.5
[31] Secondly, that the broad ambit of Promotion of Administrative Justice Act 3 of
2000 (PAJA) mirrors the generous remedial regime conferred on courts under s 172(1)
of the Constitution. The court may craft a remedy to ameliorate the injustice suffered by
the occupiers. The property is home to approximately 500 well-established households
that have been living on the property for almost 20 years. Many of the occupiers are
employed on the surrounding farms and in the industries in the area. It was argued that
the high court should have exercised its discretion in terms of s 172(1)(b) of the
Constitution and s 8 of PAJA not to give effect to the declaration of invalidity, and allowed
the occupiers to remain on the property despite the eviction order against them.
the occupiers to remain on the property despite the eviction order against them.
[32] Counsel argued that the occupiers’ constitutional rights to dignity, housing , and
security of tenure outweigh Summer Season’s property righ ts. Expropriation with
5 Staufen Investment (Pty) Ltd v Minister of Public Works and Others [2020] ZASCA 18; [2020] 2 All SA
738 (SCA); 2020 (4) SA 78 (SCA)(Staufen) para 31.
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appropriate compensation is therefore the only practical, just and equitable remedy, as
the loss that will be suffered by the occupiers if relocated, outweighs Summer Season’s
right to remain the owner of the property.
[33] Counsel was requested to make submissions against the backdrop of the City’s
submissions that the matter be remitted to the high court for further investigation.
Counsel submitted that this Court should grant leave to the occupiers to apply to
suspend the eviction order, although no application had been made.
Summer Season
[34] Summer Season submitted that the high court’s review judgment cannot be
faulted and that there is no merit in the City’s appeal. Furthermore, the relief sought by
the occupiers is legally impermissible, and their counterclaim was correctly dismissed
by the high court. They submitted that the high court correctly held that the City failed
to comply with s 23(1)(a) of the Expropriation Act and that the withdrawal of the 2015
expropriation was invalid.
Discussion
[35] In my view, the high court ’s finding that the City did not withdraw the 2015
expropriation notice in accordance with the law is unassailable. The withdrawal was
made long after the three-month period, and Summer Season did not give the required
written consent to the withdrawal as required in terms of s 23(1) of the Expropriation
Act. The withdrawal was therefore a nullity, and the City could not rely on it as a lawful
basis for any other decision it took.
[36] Counsel for the City correctly conceded that both the 2015 and 2018
expropriations were procedurally invalid . In doing so , the appeal was effectively
conceded. The invalidity of the expropriation notices, however , is not confined to
procedure. The purpose for which the expropriations occurred is a discrete issue of
public importance that warrants consideration by this Court.6
6 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA
6 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA
166; 2013 (3) SA 315 (SCA) para 5.
13
[37] In both expropriation notices, the City relied on two statutory provisions, namely
s 79 (24)( a)(i) of the Ordinance read with s 5 of the Expropriation Act . The 2018
expropriation notice stated that the expropriation was ‘for public purpose and public
interest’. The City’s stated public purpose was to settle the Kanana Village on the
property and to establish a permanent settlement. This, despite the City’s 2015 report,
which found the property unsuitable for permanent settlement.
[38] Section 5 of the Expropriation Act does not authorise the City to expropriate land.
The section states that ‘if a local authority has the power to expropriate property … such
power may only be exercised … in accordance with the provisions of this Act’.
(Emphasis added). Properly interpreted, the City’s power to expropriate the property for
the purpose of permanently housing the occupiers on the property must therefore
appear from other legislation.
[39] The right to expropriate property in terms of s 79(24)(a)(i) of the Ordinance is
equally dependent upon the existence of duties or assigned functions conferred by other
legislation. Expropriation may only occur if it is necessary for the discharge of a function
or duty. In this instance, notwithstanding the City’s assertion to the contrary, its powers
and duties in relation to a housing settlement are to be found in the Housing Act . The
Act specifically provides for expropriation for such purposes, albeit that it qualifies the
circumstances in which such right m ay be exercised and renders the exercise of the
power subject to the prior approval of the relevant Member of the Executive Council.
[40] I therefore agree with Summer Season’s submission that the high court was
correct to find that the City was required to comply with the provisions of the Housing
Act. The City’s defence that the Housing Act was not applicable because the purpose
of the expropriation was to provide the occupiers with ‘land’ rather than ‘housing’ has no
merit.
merit.
[41] The avowed purpose of the expropriation was to forestall the relocation of the
occupiers in light of the extant eviction order. Such purpose is unlawful. A power to
expropriate for a particular purpose may only be exercised for that purpose. 7 In
7 Hardman NO v Administrator, Natal 1975 (1) SA 340 (N).
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Kungwini Local Municipality v Puntlyf 520 Investments (Pty) Ltd ,8 the municipality had
sought to expropriate property to assist unlawful occupiers facing eviction. The cour t
held that the municipality had no power to do so. In Grobler v Msimanga,9 it was held
that expropriation of land for a purpose not intended should not be enforced.
[42] Regarding the occupiers’ submissions, this Court in MEC for Public Works
Eastern Cape and Another v Ikamva Architects CC10 found that an order such as the
one the occupiers seek in terms of s 172(1)(b) of the Constitution is not permissible:
‘In light of the sanctity of court orders and the need to uphold the rule of law, the public interest
in finality, the constitutional imperative that court orders must be complied with, the lack of
precedents in our law and absence of specific powers granted to courts to render a judgment
nugatory in this fashion, it is my view that the discretion under s 172(1)(b) does not extend to
orders sought by the Departments … Such an order is not permissible.’11
[43] The occupiers are also not entitled to compel the City to exercise its authority to
expropriate Summer Season’s property. The high court had made no finding that the
expropriation of a property subject to an eviction order is unlawful. In this regard , the
occupiers’ reliance on Staufen is misplaced, as it is clearly distinguishable from the case
at hand. In Staufen 12 Eskom launched an application for the expropriation of the
property in question after eviction proceedings were commenced, but before an eviction
order was granted. The eviction order was then granted by consent and specifically
provided that, if the expropriation was successful, it would fall away.
The relocation order
[44] On 30 April 2013, the high court granted an eviction order against the occupiers
and made extensive orders against the City to relocate the occupiers. The law demands
that the City and the occupiers comply with court orders. I cannot over -emphasise the
that the City and the occupiers comply with court orders. I cannot over -emphasise the
8 Kungwini Local Municipality v Puntlyf 520 Investments (Pty) Ltd [2007] ZALCC 12 (14 September
2007) para 20 – 22.
9 Grobler v Msimanga [2008] 3 All SA 549 (W); 2008 JDR 0273 (W) para 125. See also L F Boshoff
Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments
(Pty) Ltd 1969 (2) SA 256 (C) at 268A.
10 MEC For Public Works, Eastern Cape and Another v Ikamva Architects CC [2022] ZASCA 184; [2023]
1 All SA 579 (SCA); 2023 (2) SA 514 (SCA).
11 Ibid para 34.
12 Staufen para 16 and 18.
15
fact that the City breached its constitutional obligations by failing to abide by the court
orders.
[45] The rule of law, a foundational value of the Constitution, requires that the dignity
and authority of the courts be upheld. This is crucial, as the capacity of the court to carry
out its functions depends on it. As the Constitution commands, orders and decisions
issued by a court bind all persons to whom and organs of state to which they apply, and
no person or organ of state may interfere, in any manner, with the functioning of the
courts. It follows that ‘disobedience towards court orders or decisions risks rendering
our courts impotent and judicial authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assu rance that they will be
enforced’.13
[46] The high court exercised its supervisory jurisdiction to enable the City to report
to the court on the steps taken to obtain land for the relocation of the occupiers from the
property. Notwithstanding this constitutional imperative, the City displayed a troubling
disregard for the judicial eviction order.
[47] The City, as an organ of state, is duty -bound to comply with court orders. The
remarks of Justice Brandeis in Olmstead et al v United States14 remain apposite here:
‘In a government of laws, existence of the government will be imperilled if it fails to observe the
law scrupulously. [Government] is the potent, omnipresent teacher. For good or for ill, it teaches
the whole people by example. … If the Government becomes a lawbreaker, it breeds contempt
of the law; it invites every man [or woman] to become a law unto himself [or herself]; it invites
anarchy.’
[48] A court order can only be set aside by means of a legally cognizable process.15
This Court and the Constitutional Court, in refusing leave to appeal the eviction order,
approved the high court's findings in the eviction proceedings. The relief that the
approved the high court's findings in the eviction proceedings. The relief that the
13 Pheko and Others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC)
(Pheko) para 1.
14 Olmstead v United States 277 US 438 (1928) at 485.
15 Provincial Government: North West and Another v Tsoga Developers CC [2016] ZACC 9; 2016 (5)
BCLR 687 (CC); 2016 JDR 0553 (CC) para 52.
16
occupiers be allowed to remain on the property would effectively render the eviction
order nugatory.
[49] In Grobler v Phillips ,16 the Constitutional Court reaffirmed that, in assessing
whether to grant an eviction order, it is necessary to balance the rights of both the owner
and the occupier, for it is in this ‘balancing act’ that the order is rendered truly just and
equitable. In that matter, the court had to determine whether it was just and equitable to
grant an order for eviction of an 86-year-old occupier who had been residing on the
property for 75 years, with her disabled son. The Court found that the eviction was just
and equitable. In this instance, the determination that it is just and equitable that the
occupiers be relocated has already been made. That determination is, by reason of the
appeal process, final and binding.
[50] There is no doubt that owners of property bear the primary responsibility to take
reasonable steps to protect their property. The Constitutional Court in
Mkontwana v Nelson Mandela Metropolitan Municipality and Another17 stated:
‘It is nevertheless the duty of the owner to safeguard the property, to take reasonable steps to
ensure that it is not unlawfully occupied and, if it is, to take reasonable steps to ensure the
eviction of the occupier. If the owner performs these duties diligently, unlawful occupiers will
not, in the ordinary course, remain on the property for a long period. It is ordinarily not the
municipality but the owner who has the power to take steps to resolve a problem arising out of
the unlawful occupation of her property’.18
[51] Summer Seasons had not been idle, nor had it neglected to assert its ownership
rights in the property. It engaged with the City in an effort to resolve the impasse
amicably and humanely, but failed.
16 Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR 115 (CC).
16 Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC); 2024 (1) BCLR 115 (CC).
17 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v Buffalo City
Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (Kwazulu-Natal Law Society and Msunduzi Municipality as Amici Curiae)
[2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC).
18 Ibid para 59.
17
[52] In Port Elizabeth Municipality v Various Occupiers ,19 the Constitutional Court
stated that:
‘[A] court should be reluctant to grant an eviction against relatively settled occupiers unless it is
satisfied that a reasonable alternative is available, even if only as an interim measure pending
ultimate access to housing in the formal housing programme’.20
[53] Homelessness in our country is a huge problem. However, land invasion should
always be discouraged. While s 26 of the Constitution guarantees everyone the right to
have access to adequate housing, it does not give unlawful occupiers the right to choose
exactly where they want to live, and the property owners are not expected to provide
such occupation indefinitely. I cannot overemphasise the need to consider the public
interest in this matter as it reaches finality.
The high court orders
[54] The high court ordered the City to relocate the occupiers . That order had
however, already been granted by the eviction court in its judgment on 30 April 2013.
The order requiring the City to produce a report setting out the steps it had taken to
comply with the relocation order served to ensure that the City’s obligations were carried
out under judicial supervision. When the matter came before the high court, it was only
required to determine a time period within which the relocation was to occur. In this
regard, it set the date for a year after the judgment was handed down.
[55] Summer Seasons did not seek an order that the occupiers be relocated to a
specific property within the City ’s jurisdiction. Nor was the high court required to make
such a determination. It needed only to be satisfied that alternative land which was
suitable for relocation had been identified and that the relocation could be carried out.
In this regard, it specifically found that suitable alternative land was available to the City.
[56] I agree with Summer Season that the order should have contained no more than
[56] I agree with Summer Season that the order should have contained no more than
the date on which the relocation had to take place . The order that the occupiers be
19 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR
1268 (CC).
20 Ibid para 28.
18
relocated was unnecessary since it had already been made, as was the order relating
to relocation to a specifically identified property. In making these orders, the high court
erred. This does not in any material respect affect the validity of the high court order,
and it is an error that this Court may correct . In light of this, paragraphs 7 and 8 of the
high court order ought to be deleted.
[57] There is one other respect in which the high court order must be varied. In
paragraph 9 of the order, the high court set the date for completion of the relocation as
30 October 2024. That date has come and gone by reason of this appeal. Accordingly,
in light of the outcome of the appeal , the order should be rendered in a form that now
permits execution without confusion. It should be varied to permit a period of one year
from the date of the order, so that upon this Court’s order terminating the suspension of
the high court order pending the appeal , it might be executed to give effect to the high
court’s original intention.
[58] It is trite law that an appellate court will not readily interfere with the trial court’s
discretion regarding costs. Costs are a matter of discretion to be exercised by the court
of first instance, and if such discretion has been judicially exercised , there can be no
interference by an appeal court. A punitive costs order is justified where the conduct of
a party is extraordinary and worthy of the court’s rebuke. 21 The high court imposed a
punitive costs order against the City in the review application. It did so in the context of
the City’s conduct in the putative expropriation of the property , and its stated intention
to do so to avoid relocation of the occupiers . In doing so, the high court exercised its
discretion, and there is no basis upon which this Court may interfere.
[59] In the result, the following order is made:
1. Save to the extent set out below, the appeal is dismissed.
1. Save to the extent set out below, the appeal is dismissed.
2. The order of the high court is amended by the deletion of paragraphs 7 and 8
thereof and the substitution of paragraph 9 with the following:
‘9. The first respondent is ordered to complete the relocation of the second
respondent within one year of the date of this judgment.’
21 Public Protector v South African Reserve Bank 2019 [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019
(6) SA 253 (CC) para 226.
19
3. The first appellant is ordered to pay the costs of the appeal.
___________________
D S MOLEFE
JUDGE OF APPEAL
Appearances:
For 1st appellant: W R Mokhare SC (with K Phuroe)
Instructed by: Diale Mogashoa Attorneys, Pretoria
Honey Attorneys, Bloemfontein
For 2nd appellant: A De Vos (with C du Toit and P O Mosiane)
Instructed by: Lawyers for Human Rights, Pretoria
Webbers Attorneys, Bloemfontein
For respondent: H S Havenga SC
Instructed by: Peet Grobbelaar Attorneys, Pretoria
Bezuidenhouts Inc., Bloemfontein.