SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:1489/2024
In the matter between:
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY APPELLANT
and
CALVIN BANTHAM FIRST RESPONDENT
ALL UNLAWFUL OCCUPIERS OF ERF 1[...]
R[…] R[…] EXTENSION 1 SECOND RESPONDENT
Neutral citation: City of Johannesburg Metropolitan Municipality v Bantham
and Others (1489/2024) [2026] ZASCA 86 (23 June 2026)
Coram: KEIGHTLEY and COPPIN JJA and V ALLY AJ
Heard: 27 February 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, published on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand-down is deemed to
be 23 June 2026 at 11h00.
2
Summary: Property law – mandament van spolie – interdict against unlawful
eviction – onus on applicants to prove locus standi and entitlement to relief –
not for court to remedy defects in applicants’ case.
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ORDER
On appeal from: Gauteng Division of The High Court, Johannesburg ( Wilson
J sitting as court of first instance):
1. The appeal is upheld.
2. The order of the high court is set aside and is substituted by the following
order:
‘The application is dismissed.’
JUDGMENT
R Keightley JA (Coppin JA and Vally AJA concurring):
Introduction
[1] This is an appeal by the City of Johannesburg Metropolitan Municipality
(the City) against an order granted by the Gauteng Division of the High Court,
Johannesburg (the high court) , per Wilson J, in an application filed by the
respondents in the appeal . The respondents ’ causes of action were the
mandament van spolie, and a final interdict prohibiting their eviction without an
order of court. They claimed that they had been in possession and occupation of
an immovable property (the property) owned by the City, and that they had been
dispossessed and evicted therefrom unlawfully.
[2] The application was first enrolled on the urgent court roll on 5 December
2023. The City opposed the application, one of its grounds being that of an
absence of urgency. It was heard o n 14 December 2023, when it was struck for
want of urgency. The respondents did not immediately re-enrol the matter on the
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ordinary opposed motion court roll. Four months later, on 8 April 2024 , by
means of a supplementary founding affidavit, they approached the urgent court,
relying on an alleged new act of dispossession and eviction. The matter was
struck-off for lack of urgency for the second time . It was then enrolled on the
ordinary opposed motion court roll for the week of 22 July 2024 before Wilson
J.
[3] When the matter was called on 23 July 2023, the parties informed the
court that they had agreed that the matter be postponed sine die on the basis that
neither party would disturb the status quo on the property as at the date of the
postponement order. Counsel for the parties informed the high court that they
had agreed that the City would not evict anyone who was in occupation of the
property at that time, and that the respondents would not encourage further
occupation of the property. As I discuss in more detail later, the high court
directed the parties to compile an agreed list of current bona fide occupiers.
When the parties were unable to agree on this list, the application proceeded on
an opposed basis.
[4] This, in summary, is the litigation backdrop to the order on appeal. The
high court granted the order on 2 August 2024 , with reasons for the order
following on 5 August 2024. The high court: declared that the eviction by the
City of the respondents from the property, was unlawful ; ordered the City to
restore the respondents’ peaceful and undisturbed possession of the property ;
and granted an interdict prohibiting the City from evicting any of the
respondents, their spouses, life partners or children from the property without a
court order. Attached to the order was annexure A, which comprised a list of
over 200 persons to whom the relief was granted. The high court dismissed the
City’s application for leave to appeal. Leave to appeal was subsequently granted
by this Court.
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[5] For reasons that will become apparent, it is important to say something
more about the respondents and their citation in the high court proceedings. The
first respondent , who was the first applicant in the high court proceedings, is
Calvin Bantham (Mr Bantham). In the founding affidavit filed in support of the
application that served before the high court he described himself as ‘currently
residing at and occupying’ the property. He stated that he was one of many
occupiers of the property. Together, according to him, they had formed a
community of which he was one of the unofficial leaders . Mr Bantham averred
that he had been duly appointed and recognised as such by the majority of
occupiers of the property. He stated that he had instituted the application in his
personal capacity as an occupier and on behalf of the other occupiers.
[6] The remaining respondents (second respondents and second applicants in
the high court ) were cited in the high court proceedings as ‘All Unlawful
Occupiers’ of the property. Save for specific reference to a few individuals, they
were not named in the founding affidavit nor, indeed, in either the replying or
supplementary aff idavits filed by the respondents . The high court order
amended the citation of the second respondents to ‘The Further Unlawful
Occupiers of Erf 1[...] R[…] R[…] Extension 1 Listed in Annexure A’ . This is
an aspect of the high court proceedings to which I return later.
Background
[7] The property is one of three erven owned by the City in the greater Rabie
Ridge area (the GRRA). The respondents do not dispute the City’s assertion that
all three of these erven have become a ‘hotspot’ for land invasion over an
extended period of time by different groups of people. According to the City, it
is involved in parallel litigation with another group who are also claiming a
right to occupy the property. There has also been litigation involving similar
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activities and claims in relation to the other two erven in the GRRA. The high
court has, in respect of the latter properties, granted orders interdicting
individuals and groups from, among other things, erecting or completing further
structures or further occupying the land . These orders span are dated from 2017
to 2022, indicating that, by all accounts, land invasions on these properties ha ve
been ongoing over an extended period.
[8] The property is earmarked for a housing project. To this end, cement
slabs were laid some years ago with a view to further development , but this
seems to have ground to a halt. Mr Bantham aver s in his founding affidavit that
at the time that the planned development was initiated, it was earmarked for
occupation by ‘the community ’ he represents. Further, that ‘the community
members had been granted the right to occupy the property by the late Mayor
Geoff Makhubo’ and the member of the municipal council for h ousing,
Mlungisi Mabaso, in 2020. The press reports the respondents rely on do not
support this claim. Nonetheless, according to Mr Bantham, the community took
possession and occupation of the property in September 2023 and have
remained in occupation ever since.
[9] The City disputes this. It explains that in order for it to deal with the
constant threat of land invasion in the GRRA it had to employ service providers
to patrol the land to prevent this. It presents several examples of reports filed by
the Johannesburg Metropolitan Police Department (JMPD) and service
providers about these activities. The reports cover the GRRA and are not
specific to the property. They present a picture of organised attempts by groups
of people to occupy the City’s land, together with continued counter -action on
the part of the JMPD and the s ervice providers to prevent this and to remove
illegal structures.
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[10] The City avers in its answering affidavit that only ‘unfinished and/or
unoccupied structures with no evidence of occupation’ are demolished. The
respondents do not specifically address this averment in their replying affidavit,
saying that it, and the related averments by the City regarding the operations by
the JMPD and the service providers in the GRRA , were not within their
personal knowledge. The high court found the common cause fact of the City’s
demolition of unfinished and uninhabited structures on the property to be the
definitive factor in granting relief to the respondents.
High court litigation
[11] Before the high court the respondents sought an order declaring their
‘eviction, alternatively dispossession’ from, or of, the property to be unlawful,
together with an order directing that their possession of, and access to the
property be immediately restored ante omnia . In addition, they prayed for an
interdict prohibiting the City and its co -respondents from taking any steps with
the intention of evicting them from, or dispossessing them of the property, or
destroying or demolishing the respondents property ‘until such time that the
eviction and/or dispossession … is deemed lawful’.
[12] Mr Bantham deposed to the founding affidavit on 4 November 2023. He
asserted that he and the remaining respondents, ‘as a community’ had acted to
protect the property from unlawful invasion after it was allegedly earmarked for
their eventual occupation. He stated that with the onset of the Covid -19
pandemic, the majority of the respondents had lost their employment and
income. They had been ‘compelled to socially distance [themselves] from the
individuals from whom [they] had been renting’. Out of urgent ne cessity, on 18
September 20 23, he explained, ‘the community members and myself took
occupation of the property and commenced with the erection of dwellings’. He
asserted that they had had no other alternative but to do so, as the vast majority
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of ‘the community’ had applied for RDP housing to no avail . He stated that he
wished to place on record that their occupation of the property was expected to
be for an indefinite period, while waiting for assistance from the Provinc ial
government.
[13] Mr Bantham proceeded to describe seven subsequent instances of the
JMPD, assisted by one or other of the service providers, allegedly arriving at the
property and demolishing what were described as the respondents ’ homes, and
evicting them from the property. These events were alleged to have occurred on
25 September 2023, 9 October 2023, 12 October 2023, 26 October 2023, 6
November 2023, 9 November 2023 and 30 November 2023. Mr Bantham
explained that following these demolitions, the respondents had rallied and
rebuilt what he described as ‘their homes’.
[14] In each instance it was alleged that the demolitions were carried out with
a measure of violence. It was alleged that on 16 November, some occupiers
were injured with rubber bullets and another had been assaulted ‘with open
hands’. It was also alleged that building material and other belongings had been
confiscated. These events had all occurred without a court order.
[15] The four respondents who were alleged to have been assaulted, being
Reagan Warren Plaatjies (Mr Plaatjies), Tony Eddie Davids (Mr Davids),
Doulen Olivier (Mr Olivier), and Vincent Juwana Manana (Mr Manana)
provided standard confirmatory affidavits that were attached to the founding
affidavit. In each affidavit, the deponent stated that he currently resided at the
property and confirmed the correctness of the contents of Mr Bantham’s
affidavit ‘insofar as it relates to me and the events which had occurred in respect
of the [property]’. That was the extent of each confirmatory affidavit. These
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affidavits were all commissioned on 30 November 2023, four days before Mr
Bantham had his affidavit commissioned on 4 December 2023.
[16] Also attached to the founding affidavit were sever al photographs. One
was of what appears to be a thigh with an injury. Three others are of a man
wearing a hat with an emblem holding onto the front of the neck of another
man’s shirt and shoulders. The photos were undated but appear to have been
sent or received by way of a social media application on a cellular phone on 16,
20 and 30 November. Another, undated photograph depicts a man showing a
wound on his arm above the elbow.
[17] Another large batch of photos attached to the founding affidavit were
described as being of ‘the property as well as members of the community’. They
depict what appear to be plywood sheets on the ground, or being held by
unidentified persons; some plywood walls in the process of being put up ;
unidentified persons (some children) in the vicinity of the walls or half -finished
structures, some personal belongings on cement slabs; a few small informal
structures and a couple of interiors of informal structures with some personal
belongings and some people.
[18] These photographs are all undated. None of them bear any geographic
location reference points. There is no affidavit by anyone confirming that they
took the photographs and what they depict. There is no description of who or
what is shown in each photograph. Significantly, no one depicted in any of the
photos is identified. It is also worth recording that four of the photographs
appear to depict cement slabs, and a formal RDP -type structure under
construction, with men in blue overalls engaged in the construction activity.
There is no explanation of how photographs of what appear to be men
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employed to construct a formal dwelling came to be included in the batch
attached to the founding papers.
[19] The only indicators of any details regarding the se photos were a batch of
six standard -form confirmatory affidavits from persons whom Mr Bantham
described as being ‘occupiers of the property’. These confirmatory affidavits are
in exactly the same form as those referred to earlier. They provide no details
connecting the photographs to the deponents, nor any personal details about
each deponent and his or her connection to the property. As with the other
confirmatory affidavits attached to the founding affidavit, a ll but one of them
was deposed to before Mr Bantham deposed to the founding affidavit.
[20] In support of the relief sought, Mr Bantham alleged that he and ‘the
occupiers’ had occupied the property since 18 September 2023. They had also
allegedly been in peaceful and undisturbed possession of the property, and had
been deprived of that possession by the City, which had resorted to self-help by
evicting the respondents without the necessary court order under the Prevention
of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (the PIE).
This threat was ongoin g because, Mr Bantham averred , the respondents had
rebuilt the structures after each alleged eviction. However, they lived with the
ongoing threat of being unlawfully evicted again.
[21] Although the City did not dispute that demolition exercises had been
conducted on the property on the dates alleged by the respondents, it opposed
the urgent application on multiple bases . Significantly, for purposes of this
appeal, i t also pertinently raised a point in limine under the heading
‘Unidentified Occupiers’. The City referred to an order of the high court dated
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18 December 2020 granted by Siwendu J 1 (Ntombela v City ) involving another
of the City’s properties in the GRRA. In that order, the high court had recorded
that: ‘Other than the first applicant, the second and further applicants are not
properly before the court, and it is not discernible who the applicants are and
whether they have a direct interest in the matter.’ The City pointed out that, as in
Ntombela v City , the second respondents in this matter were not identified . It
stated that if the application succeeded, each of the unnamed individuals would
be entitled to be restored to their alleged possession of the property. The City
thus disputed the identities of the unnamed applicants. In addition, it disputed
the authority of the instructing attorney to represent them , and filed a Rule 7
notice.
[22] As regards the merits of the application, the City disputed that the
respondents had established that they were in peaceful and undisturbed
possession because any possession they may have sought to establish had been
thwarted by the demolitions. The City contended that the situation was one of
spoliation by the respondents, coupled with counter-spoliation on its part.
[23] It also denied that the respondents had any right to occupy the land or that
they were in occupation. The City averred, as noted earlier, that in the actions
undertaken to prevent land invasions in the GRRA, only unfinished and
uninhabited structures were demolished. In instances where informal structures
were occupied, the City applied for the necessary eviction orders. On the City’s
version, therefore, no eviction order had been necessary in the case of the
respondents because they had not established that they were occupiers protected
under the PIE.
1 Zakhele Ntombela and the Occupiers of Portion 79 of Erf 1344, Rabie Ridge Extension 2 v City of
Johannesburg Metropolitan Municipality and Others , Unreported order of the Gauteng Division of the High
Court, Johannesburg, Case no:20/43429, 18 December 2020.
12
[24] The City denied that the demolitions had been done violently or that the
assaults had occurred. As regards the photographs attached to the founding
affidavit, it placed their authenticity in dispute, pointing out the shortcomings
described earlier.
[25] Regarding the interdict sought by the respondents, in addition to
disputing that they were occupiers and entitled to the protection of the PIE, the
City contended that alternative relief was available to them. It referred to the
correspondence between the respondents’ attorney and the City’s in which the
City had expressed the view that the matter was capable of resolution through
mediation. The City had invited the respondents to agree to pursuing this path as
opposed to litigation. This suggestion was reb uffed. The City pointed out that
this alternative remained open to the parties as a realistic option, given that the
high court had previously directed mediation in similar proceedings involving
another of the properties in the GRRA. The reference in this regard was to the
order granted in Ntombela v City , in which Siwendu J had directed that the
parties engage in mediation regarding the applicants’ housing grievance.
[26] By the time the matter was heard by the high court in July 2024 , more
than seven months had elapsed since the matter was first enrolled . It was then
ten months since the averred possession and occupation and the first incident of
alleged dispossession and eviction . It was n o doubt with th is lapse of time in
mind that the parties jointly sought an order from the high court postponing the
matter on the terms described earlier.
[27] The high court was not willing to accede to the partie s’ request for a
postponement without further steps being taken. Its reasons are stated in the
judgment as follows:
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‘I was not satisfied that this would be a proper or a competent order to make, because there
was no evidence before me of what the “status quo” was . In other words, there was nothing
before me that set out the extent to which the property had been re -occupied after the [April
2024] demolition operation, and accordingly no meaningful way in which I could ascertain
exactly what conduct the postponement order would enjoin. I asked counsel whether the
parties would be prepared to provide a list of individuals who both parties accepted were in
occupation of the property on 23 July 202 4. If that could be done then I could make an order
directing the City to refrain from removing those individuals from the property, and directing
the applicants to refrain from encouraging further occupation of the property for the period of
the postponement. The parties agreed to follow this approach. I stood the matter down to
Thursday 25 July 2024 in order for the list to be agreed.’2
[28] To this end, the high court made an order on 23 July 2024 (the 23 July
order) directing the parties ‘to compile and confirm a list of bona fide occupiers
currently at the property as of 23 July 2024, which list will be compiled and
confirmed by Wednesday, 24 July 2024. The aforesaid list is to be attached to
this order as “annexure A”’. Details of the exercise undertaken by the parties in
an attempt to reach agreement on the list of occupiers are captured in
supplementary affidavits filed by the parties after they had failed to reach
consensus as to whom should be included in the envisaged ‘annexure A’.
[29] In its supplementary affidavit, the City stated that some of its officials and
legal team had visited the property on 18 July 2024, prior to the hearing of the
matter. They found one completed and occupied structure on the property.
Photographs were annexed to the affidavi t, with confirmatory affidavits.
According to the City, when it s legal team arrived for the inspection on 23 July
According to the City, when it s legal team arrived for the inspection on 23 July
2024, they observed the same, single completed and occupied structure.
2 Bantham and Others v City of Johannesburg and Others (2023/128720) [2024] ZAGPJHC 706 (Bantham HC)
para 12.
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[30] However, during the joint inspection of the property , Mr Ramogale, the
deponent to the City’s supplementary affidavit , noted several individuals
attempting to construct additional structures on the property . They alleged that
members of the JMPD had demolished their structures that morning . The City
denied these claims, as they were not supported by any evidence. It also denied
a second explanation, provided by individuals present at the inspection, for the
absence of structures . This was that the City had directed them to remove their
structures. However, the City rejected this explanation, too, as there were no
details of how this had occurred or who had issued the directive. The City
contended that: ‘It is highly improbable if not impossible that structures
belonging to approximately 159 individuals could have been
demolished/removed between 11h45 after the granting of [the July 2023 order]
and the arrival of the legal representatives at the property … .’ This, stated the
City, was far-fetched and misleading.
[31] The City took the view that it would be futile to compile a list of bona
fide occupiers beyond the list of the four occupants of the single completed and
occupied structure . The parties agreed to convene for a second day on the
property in an attempt to reach consensus.
[32] The agreed time of the meeting was 16h00 on 24 July 2024 However, the
City team arrived approximately two hours earlier . Once again, attempts to
build new structures w ere observed, as well as people moving mattresses onto
the property. When both teams were present, the respondents produced a
handwritten list of approximately 15 9 names, apparently prepared by Mr
Bantham. Their legal team proceeded to call out names from this list , marking
peoples’ presence or absence. The City rejected the list and procedure.
Subsequent to the inspection , a reduced list of 114 names was provided to the
City by the respondents’ attorneys on the basis that these were the individuals
15
whom they considered to be the most vulnerable and, presumably, in need of
housing.
[33] In its supplementary affidavit the City made two significant averments .
First, i t stated that Mr Bantham had been present at the inspec tions and had
been unable to point out a structure or dwelling that belonged to him. Second,
the City referred to photographs sent to it by the respondents’ attorneys in letters
exchanged before the second day of inspection. It averred that over the two days
of inspection none of the alleged occupiers could point out any dwellings
pictured in the photographs as belonging to them or their location. The City also
disputed the photographs, contending that they were misleading and not
authenticated.
[34] Mr Bantham once again deposed to an affidavit on behalf of the
respondents. In it he gave a third explanation for the absence of structures at the
time of the inspections of the property. He averred that most of the occupiers on
the revised list had deconstructed their informal dwellings that morning to avoid
harassment by the City. According to him, this was done on a daily basis , with
the materials being stored elsewhere. In the evenings, the materials were
routinely collected and the structures rebuilt. Mr Bantham stated that for all
intents and purposes, those on the revised list of names ‘remain and have always
been in occupation’ because the fact that their informal dwellings are dismantled
does not detract from the fact that they continue to occupy the property. He
expressly denied that there was only one occupied structure on the property on
the days of the inspection.
[35] On the question of the revised list of 114 names produced by the
respondents, Mr Bantham averred that this was ‘an accurate list of bona fide
occupiers in respect of the property’. Somewhat confusingly, however, he went
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on to state that it did not include the names of persons who were not present on
the property ‘when their names were called’. Elsewhere in his supplementary
affidavit, Mr Bantham averred that ‘over 300 community members’ had been
affected by the City’s actions.
[36] In his affidavit Mr Bantham did not deny the City’s averment that he had
been unable to identify his structure or dwelling . He simply did not respond to
this allegation. Similarly, save for a bare denial , he did not deal with, or give
any explanation for, the City’s second averment concerning the inability of
anyone present at the inspection to identify their structures from photographs
provided.
[37] With the parties at a stalem ate, the matter was argued before the high
court on an opposed basis.
Judgment of the high court
[38] In its judgment, t he high court identified two areas of dispute. The first
comprising factual issue s. These were: whether each of the respondents was
identified on the papers ; ‘the fact that each of the [respondents] had been
removed from the property during the City’s demolition operations ’; the
authority of Mr Bantham to depose to the founding affidavit ; and the authority
of the instructing attorney to represent the respondents. The second area of
dispute identified in the high court judgment was the question whether the
demolition operations between 25 September and 30 November 2023
constituted unlawful acts of spoliation.
[39] On the factual issues identified, the high court referred to Mr Bantham’s
reference in his founding affidavit to ‘a series of confirmatory affidavits in
which each of the applicants is identified , and in which each of them avers that
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they are “residing” at the property ’. The high court proceeded in this regard as
follows:
‘I cross-referenced the confirmatory affidavits on the court file with the power of attorney to
produce a list of just over 200 people who had both deposed to confirmatory affidavits and
signed the power of attorney. These individuals were, on the face of it, identified on the
papers as occupiers of the property whose shacks had been demolished during the seven
demolition operations that took place between 25 September and 30 November 2023 , and
who had instructed the attorney to bring the spoliation application.’ (Emphasis added.)
[40] The power of attorney referred to was that filed in response to the Rule 7
notice referred to earlier. It wa s not included in the appeal record. The
confirmatory affidavits referred to were not annexed to the founding affidavit,
nor included in the appeal record. This was an issue when the appeal was argued
before this Court. I deal later with what transpired in that regard.
[41] The high court noted that the City had argued that the confirmatory
affidavits should not be accepted ‘but could not say why’. The high court went
further, finding that the City had not placed the contents of the confirmatory
affidavits in dispute, nor did it dispute ‘except perhaps in the vaguest terms’ that
each of the respondents before the court ‘had identified themselves’. The high
court concluded that:
‘In these circumstances, I had to accept that the applicants in whose favour I made my order
were properly before me, and I annexed a list of their names to my order of 2 August 2024,
identifying all of them save Mr Bantham as the second applicants.’
This explains the compilation by the high court of annexure A to its final order
and its mero motu amendment of the citation of the second respondents.
[42] Having thus identified the second respondents and accepting their locus
standi, the high court considered whether they had established a case for relief.
standi, the high court considered whether they had established a case for relief.
Central to the high court’s determination was the common cause fact that in its
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demolition exercises aimed at preventing land invasions, the City had removed
incomplete or vacant structures from the property. The high court considered the
principles applicable to the mandament van spolie . It stated that the critical
question was whether, in this case the respondents had established possession.
[43] While noting that this question, in practice, is highly fact-dependent, the
high court followed this Court’s approach in City of Cape Town v South African
Human Rights Commission (COT v SAHRC ),3 and the high court’s earlier
judgment in Residents of the Setjwetla Informal Settlement v Johannesburg
City4 (Setjwetla). It found that ‘a person who has commenced construction of a
dwelling on land clearly “holds” both the material out of which the dwelling is
constructed and the land on which it is being constructed’ .5 Consequently, at
that stage, the remedy of counter -spoliation is not available and cannot justify
the demolition of the relevant structures , regardless of whether they are
occupied or vacant . In rejecting the City’s defence of counter -spoliation, the
high court held that:
‘The [City] would … have been entitled to repel the [respondents] as trespassers if it had
found them on the property with building tools and materials. It may also have been entitled
to repel them when they were marking out stands or levelling earth for the construction of
their dwellings. But w hat [the City] could not do – at least not without a court order – was
demolish the [respondents’] structures once they were completed or in the process of
construction.’6
[44] It granted the following relief (in addition to an award of costs in the
respondents’ favour):
‘1 The [respondents’] eviction from the property … is declared unlawful.
3 City of Cape Town v South African Human Rights Commission [2024] ZASCA 110; 2024 (5) SA 368 (SCA).
4 Setjwetla Informal Settlement v Johannesburg City 2017 (2) SA 516 (GJ).
6 Bantham HC para 32.
19
2 The [City] is directed forthwith to restore the [respondents’] peaceful and undisturbed
possession ante omnia.
3 The [ City] is thereafter interdicted and restrained, whether by itself or through the
agency of any other person, from evicting any of the applicants, their spouses, life partners or
children from the property, without an order of court specifically authorising it to do so.’
[45] Plainly, from its order, the high court was satisfied that the respondents
had adduced sufficient evidence to establish not only possession sufficient to
warrant protection under the mandament van spolie , but also occupation and
protection from eviction by the City without the necessary order under the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19
of 1998 (the PIE Act). Although the order granted an interdict against eviction ,
the high court ’s judgment provides no indication that it considered the
requirements for that relief. It found only, in closing, that it ‘was bound to grant
the applicants the spoliation order and the interdict they asked for’.
Annexure A
[46] Critical to this appeal is annexure A. The City takes issue with the high
court having taken matters into its own hands in compiling this list of
respondents without alerting the parties of its intention to do so and,
consequently, incorporating annexure A into the order without giving the parties
the prior opportunity to make submissions on the proposed list . The City points
out that the 249 names included in annexure A are far in excess of the list of 159
names, and the subsequently reduced list of 114 names of the alleged second
respondents that were produced during the inspections on 23 and 24 July 2024 .
The high court, it contends, gave the respondents far more than even they had
contended for when it formulated its own list. In doing so, the high court gave
rights of occupation to, what the City called , an unverified group of persons
20
whose possession and occupation were disputed. It submits that the high court
misdirected itself in doing so.
[47] A feature of all the aff idavits deposed to by Mr Bantham is that he
describes and deals with the respondents as an amorphous group . He refers to
‘the community’ or ‘the occupiers’ without providing any details of the group ’s
number, composition or identities . On Mr Bantham’s version of events, this
amorphous group acted as one in taking possession of the property, suffering
dispossession and re-taking possession several times. As at July 2024, according
to him, this community was still in occupation of the property ten months later.
[48] As the high court appreciated, relief cannot be sought by, or effectively
granted to, an amorphous group. The basic problem before the high court was
that there was no indication in the respondents’ founding affidavit identifying
who the second respondents , individually, were. Without evidence to establish
this basic requirement of locus standi , the court could not properly determine
whether the respondents had made out a case for relief. It was for this reason
that the City raised the non -identification of the individual respondents as a
point in limine.
[49] The high court resolved this problem by using the confirmatory affidavits
‘on the court file’ to compile annexure A. However, as I noted earlier, only a
few confirmatory affidavits were annexed to the founding and other affidavits
filed by the respondents. The appeal record included no confirmatory affidavits
other than these. Therefore, it was not clear which other confirmatory affidavits
the high court had accepted as evidence of the second respondents’ locus standi
and entitlement to relief. At the hearing of the appeal, c ounsel for the parties
were unable to provide ready answers to this question.
21
[50] Seeking the necessary clarity, the Court issued a directive after the
hearing. The directive required the instructing attorneys to consult the record of
the high court proceedings and to clarify whether the confirmatory affidavits
and power of attorney referred to in paragraph 19 of the high court’s judgment
had been served and filed and, if so, on what date.
[51] The parties’ affidavits filed in response to the directive provided
important clarity that was not apparent from the appeal record . Large batches of
confirmatory affidavits (the un-annexed confirmatory affidavits) were uploaded
onto the Court Online/CaseLines system on 11 December 2023. The extracts
included in the respondents’ attorney ’s affidavit reflect that each batch
comprised several single confirmatory affidavits . They were uploaded two days
after the City had filed its answering affidavit, which was on 9 December 2023.
The City’s instructing attorney stated in his affidavit that the confirmatory
affidavits were never served on the City.
[52] There is no evidence of any covering affidavit explaining why th e un-
annexed confirmatory affidavits were no t completed and filed timeously , and
why they were simply uploaded onto the CaseLines system . The City points out
that there was a further problem with those confirmator y affidavits that were
annexed to the founding affidavit. All but one of these was commissioned on 30
November 2023, four days before the founding affidavit itself was
commissioned. The respondents’ attorneys do not dispute this.
[53] The respondents’ attorney helpfully provide s details of what is contained
in the un-annexed confirmatory affidavits . First, the name and gender of the
deponent. Second, an averment that they reside on the property . Third, the
following averment: ‘The facts herein contained are within my own personal
knowledge and are, unless other wise appears to the contrary from the context
22
hereof, to the best of my belief both true and correct .’ The latter is a strange
formulation of the standard introductory paragraph of a confirmatory paragraph,
but I say no more on that. Finally, the averment that: ‘I have read the Answering
Affidavit of CALVIN BANTHAM and confirm the correctness thereof insofar
as it relates to me and the events which had occurred in respect of the aforesaid
immovable property.’ The applicant’s attorney submitted that the reference to
‘answering affidavit’ was a typographical error explicable by the urgency with
which the application had been instituted.
[54] The power of attorney , according to the respondents’ attorneys’ affidavit,
comprised a list of 277 signatures. It is common cause that this was uploaded
onto CaseLines on 12 December 2023.
The high court’s reliance on annexure A
[55] The question is whether the high court was correct in concluding that it
was bound to accept the un -annexed and annexed confirmatory affidavits as
evidence that the individuals listed in annexure A were occupiers of the property
whose informal dwellings had been demolished by the City. In other words, was
it correct in finding that the persons listed in annexure A had satisfied the onus
resting on them to demonstrate their entitlement to relief.
[56] In evaluating th is question it is important to consider the context within
which the case arose. It is not disputed that ongoing land invasion activity is rife
in the GRRA. Many people seek to stake a claim to this vacant land, sometimes
in competition with others . This much is clear from the several examples of
court orders issued by the high court, and referred to by the City, involving land
invasion activity in the GRRA. One must be mindful that this may be driven by
the backlog in housing solutions for those in need. Our constitution and the PIE
Act protect unlawful occupiers from unsanctioned evictions . However, at the
23
same time, it is a basic requirement of the rule of law that those who claim its
protection as unlawful occupiers must establish the bona fides of their claims.
[57] This requires that the y adduce the evidence necessary to prove the ir
relationship with the property , in respect of both their locus standi and the
merits of their claim. The onus rests upon them to do so and , as this is a factual
inquiry, the trite principles applicable where there are material disputes of fact
will apply against them.
[58] The high court compiled annexure A and accepted that the individuals
listed had locus standi. The primary difficulty with this is that annexure A was
generated by the high court and not by the respondents. This primary difficulty
reveals a further problem: the very reason that the high court felt it necessary to
compile annexure A was because the respondents’ case was deficient in this
regard. They did not identify the members of the community whom they
claimed had locus standi . There was n o evidence to establish who the second
respondents were in the founding affidavit . The relatively few confirmatory
affidavits that were annexed were materially deficient as they were prematurely
commissioned. The un-annexed confirmatory affidavits were simply uploaded ,
without service on the City, after it had filed its answering affidavit, and without
any explanation . The power of attorney, too, seems to have simply been
uploaded. Appended to it were 277 signatures, but these would not have been
under oath.
[59] While the respondents’ case had commenced as an urgent matter when
time pressure might have provided some explanation for these irregularities, this
was no longer so by the time its merits were considered, seven months later. The
respondents still had not provided any evidence to clarify who the second
respondents were , nor any explanation for why the names of the other
24
respondents were not listed when the application was instituted. On Mr
Bantham’s version, ‘the community’ had been in possession and occupation of
the property since September 2023. If the community comprised a fixed group
of persons, as is implicit in the respondents’ case, the individual members of the
occupier group would have been known and identifiable from commencement.
[60] The high court accepted as evidence the signatures appended to the power
of attorney and the annexed and un-annexed confirmatory affidavits. This was a
matter in which the City had pertinently raised the question of the absence of
evidence to establish locus standi in its answering aff idavit. It was for the
respondents, and not the high court, to remedy this fundamental deficiency in
the respondents’ case.
[61] Compounding the problem , the high court conducted its own active
forensic exercise in determining who had locus standi . It did so because the
documents upon which it place d reliance, being the un -annexed confirmatory
affidavits and the signatures on the power of attorney, were contradictory. There
were more signatures to the power of attorney than there were confirmatory
affidavits.
[62] Again, this was an issue that the respondents were required to explain and
rectify. It was not open to the high court, i n these circumstances, to rectify the
respondents’ difficulties. It is concerning, too, that the high court did so of its
own accord, without involving the parties or providing them with the
opportunity to make submissions on its proposed annexure A. The judgment
does not explain why it adopted this course. The matter was no longer urgent
and there was no need for haste to override the necessity for an open and
transparent process.
25
[63] This was not a case in which the respondents had secured interim relief
pending a final determination. Inevitably, the situation on the ground had
evolved in the seven months that had elapsed since the matter had been struck
from the urgent court roll in December 2023. No doubt this informed the
parties’ decision to find a via media and jointly to approach the high court for
the postponement of the matter.
[64] The locus standi of the respondents and the alleged fact of their
possession and occupation were disputed issues from the commencement of the
litigation. They became more, rather than less , complicated when the parties’
efforts to reach consensus in response to the 23 July order stalled. Importantly,
both parties filed supplementary affidavits placing facts before the high court
that were relevant to the issues in dispute.
[65] It was the respondents’ case that as a group they had taken possession and
occupation of the property on 18 September 2023. In Mr Bantham’s affidavit
filed after the ins pections conducted pursuant to the 23 July order, he re -stated,
on behalf of the second respondents , that they remained in occupation of the
property. In their affidavits the respondents averred that they took possession
and occupation in September 2023 and, despite the City’s unlawful attempts to
dispossess and evict them, they nonetheless retained their posses sion and
occupation as at the date of the opposed motion hearing . The substance of the
relief they sought was to ensure their continued , undisturbed possession and
continued occupation until ordered to leave by a valid court order.
[66] It was this version that the City disputed . In its original answering
affidavit, it disputed the authenticity of the photographs relied upon by the
respondents as evidence of their alleged occupation , and pointed out their
shortcomings. The respondents did not hing to rectify the obvious evidentiary
26
defects in the photographs . None of them proved that the persons whom the
high court accepted had locus standi were occupiers of the property, or that they
had been evicted from the uninhabited and incomplete structures that the City
had demolished.
[67] In t he City’s supplementary affidavit filed after the inspections in July
2024, it averred that neither Mr Bantham nor any of the other alleged occupiers
had been able to point to their structures in the photographs their attorneys had
provided. Mr Bantham did not substantially dispute these averments. It was the
respondents who bore the onus to prove their allegation that they had, and
continued to, occupy the property . The City’s version of the facts ought to have
prevailed. Yet, the high court accepted the photographs as evidence of the
respondents’ occupation and their eviction . It failed to consider the City’s
evidence which plainly called into question the credibility of the averments
made by Mr Bantham that the respondents were bona fide occupiers of the
property.
[68] There was also a marked absence of clarity about the number of second
respondents. I have already noted the discrepancy between the un -annexed
confirmatory affidavits and the signatures on the power of attorney , which
prompted the high court to conduct its own exercise in compiling annexure A.
Mr Bantham was never clear on the extent of the group he contended was the
community that had become occupiers. Sometimes, he claimed that over 300
people had been affected by the City’s actions . Yet he proceeded to produce a
list of 159 people who m he claimed were the occupiers. This list was the n
reduced to 114. This list was attached to the City’s supplementary affidavit and
not disputed by Mr Bantham in his responding affidavit. In the face of these
clear contradictions in the respondents’ own evidence, the high court ’s
27
conclusion that the individuals listed in annexure A had established their locus
standi and entitlement to relief is insupportable.
[69] The high court found that the averments made in the annexed and un -
annexed confirmatory affidavits were proof that those listed in annexure A were
in possession and occupation of the property. I earlier detailed the contents of
these affidavits, as confirmed by the respondents’ attorney : the bland statement
that they were resident on the property, and the confirmation of the facts stated
by Mr Bantham. This Court has previously criticised th is form of confirmatory
affidavit as reflecting the ‘slovenly practice’ of adducing hearsay allegations in
its main affidavit, supported by ‘so -called’ confirmatory affidavits by witnesses
who should have provided the necessary detail, but who merely seek to confirm
what has been said in the main affidavit ‘insofar as it relates to me’ or words to
that effect.7
[70] In this case, there was a marked absence of any personal information or
details provided by the respondents to demonstrate their possession and
occupation of the property, and to link them to the structures that were removed.
The community and its conduct were explained by Mr Bantham in broad and
general terms . When the City raised its point in limine challenging the
community’s composition and the identities of the second respondents , the ir
only response was to upload the un-annexed confirmatory affidavits.
[71] As I stated earlier, t his was a case that was litigated in the context of
ongoing, concerted land invasion activity by many people . The onus on the
respondents was not to establish that they wished to occupy the property, or that
they aligned themselves with those seeking to occupy the City’s land. To
7 Eskom Holdings SOC Limited v Masinda [2019] SCA 98 ; 2019 (5) SA 386 (SCA) para 3, citing Drift
Supersand (Pty) Ltd v Mogale City Local Municipality & Another [2017] ZASCA 118 ; [2017] 4 All SA 624
(SCA) para 31.
28
succeed, they had to adduce evidence to support their case that they were the
persons who had constructed the unoccupied or unfinished structures that the
City had removed and were thus entitled to legal protection of their actual
occupation. In the light of the deficiencies in their case, described earlier , the
generalised statements in their confirmatory affidavits were not proof of this.
The high court erred in accepting it as such.
[72] For the reasons discussed above, I find that the high court erred in
concluding that Mr Bantham and the persons it listed in annexure A were
entitled to the relief granted. While the high court focused in its judgment on the
issue of what conduct constitutes possession and occupation , in the context of
counter-spoliation, the respondents’ case was flawed at a more fundamental
level. For this reason, the high court ought to have dismissed their application.
Conclusion and order
[73] It follows that the appeal must be upheld. The City did not press for costs
orders against the respondents in respect of either the high court proceedings or
the appeal. I accordingly make the following order:
1. The appeal is upheld.
2. The order of the high court is set aside and is substituted by the following
order:
‘The application is dismissed.’
____________________
R M KEIGHTLEY
29
JUDGE OF APPEAL
Appearances
For Appellant: T Mosikili with L Mtshiyo
Instructed by: Popela Maake Attorneys, Johannesburg
Symington De Kok Inc, Bloemfontein
For Respondents: T Mirtle
Instructed by: Paul T. Leisher & Associates, Johannesburg
Mayet & Associates, Bloemfontein.