Fischer and Another v Persons Unknown

• Jurisdiction: South Africa
• Judge: Gamble J
• Judgment Date: 13 March 2014
• Counsel: Anton Katz SC (with M Adhikari) for the applicants. S Magardie (attorney) for the respondents, instructed by the Legal Resources Centre, Cape Town.
• Docket Number: 297/2014
• Court: Western Cape Division, Cape Town

Gamble J: H

Introduction

[1] On 7 and 8 January 2014 the second applicant, the City of Cape Town (the City), conducted a series of raids on the Cape Flats which were reminiscent of the well-documented operations conducted by the apartheid government in the 1980s in areas such as Crossroads and I KTC. Units of heavily armed men clad in bulletproof gear and protective helmets went onto private property and systematically demolished informal structures.

[2] Residents of Cape Town who had lived through the civil unrest of the 1970s and 1980s may well have had a sense of déjà vu if they had witnessed this event. They may have asked themselves whether such J

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A behaviour was permissible in a constitutional democracy. Had they asked the City if this were possible, they would have been assured that it considered that it was acting lawfully and fully within its rights.

[3] When the persons whose structures had been demolished B approached the high court for urgent spoliatory relief, the City opposed it and asserted the lawfulness of its behaviour. That is what this case is about. But first, some background.

The property

[4] The first applicant, Ms Iris Arillda Fischer, is the owner of erf C 150, Philippi, a piece of land some 2,7 hectares in extent. She resides on the property in a formal brick house with her son, Mr Jacob Fischer, who occupies another brick house on the property. Ms Fischer is a 78-year- old pensioner and Mr Fischer a schoolteacher in his 40s.

[5] The property is located in an area to the east of Lower Crossroads D and to the south of Cape Town International Airport, and has been in the Fischer family for more than half a century. Ms Fischer herself has lived on the property for 47 years. The property appears to be unfenced and located in an undeveloped area on the Cape Flats, there being no agricultural or commercial enterprise thereon. As I understand the E photographs which accompany the papers in this matter, the surroundings on the property are covered with bush and scrub typical of the sort of vegetation that one encounters on the Cape Flats.

[6] I do not know how far the property is from the nearest area of human settlement, but it is not in dispute that since April 2013 there have been a number of incursions onto the property by people seeking to erect F informal structures thereon.

[7] In late April and early May 2013 the City moved onto the property at the request of the Fischers and demolished a good number of structures which had been put up on the property shortly before. On 30 April 2013 the City says it demolished 73 structures and the following G day another 120. Included in the latter were a number of structures which had been re-erected overnight.

[8] The Fischers were seemingly unaware of the presence of these structures, given the size of the property and the density of the vegetation thereon. Be that as it may, the structures were erected without the H consent of the owner of the property and it is not in issue that they were illegal. The occupiers took no steps at that time to address the lawfulness of their removal from the land by the City.

[9] The City says that after the May 2013 demolition there was a small group of people who put up four or five structures every night and took I them down again in the morning. In August 2013 the City gave Ms Fischer notice under s 6 of PIE [1] to evict the unlawful occupiers. She evidently engaged the services of a local attorney who did precious little

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to assist her. In the meantime, says the City, there was a gradual increase A in incursions onto the property at the rate of about one structure a week. By early January 2014 this number allegedly stood at about 20 structures.

The events of 7 and 8 January 2014 B

[10] On Tuesday 7 January 2014, at about 15h00 City officials observed a number of vehicles in the street near the property, from which large quantities of building material were being off-loaded. At the same time people commenced with the erection of informal structures on the property. These appear to have been constructed from wood and corrugated iron sheets. C

[11] The City commenced with a demolition operation at about 18h00 on that day. In the process it took down about 32 structures. However, not all were taken down, and when the City's law enforcement officials withdrew from the area at around 19h00 there were between 20 and 30 structures left on the property. D

[12] The City's demolition squad returned on the morning of Wednesday 8 January 2014 at around 09h00. It discovered that a further 15 structures had been erected on the property overnight and it took immediate steps to demolish some of these. The City withdrew from the property at around 10h30 that day and says that since then there have E been no further incursions onto the land.

The main application

[13] On Friday 10 January 2014, the City and Ms Fischer launched the F main application in these proceedings to prevent any further incursions onto the property. Binns-Ward J granted an order that day in which the respondent was described as '(p)ersons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy Erf 150 (remaining extent), Philippi'. These unidentified persons were ordered to show cause on 18 February 2014 why they should not be interdicted from: G

'2.1

. . .

2.1.1

Entering or being upon Erf 150 (remaining extent), Philippi (hereinafter referred to as the property) for purposes of unlawfully occupying or invading the property. H

2.1.2

Erecting, completing and/or occupying any structure on the property.

2.1.3

Intimidating, harassing, assaulting or in any way interfering with the first applicant.

2.1.4

Inciting or encouraging other persons to settle on the property or to erect structures on the property for the purposes of unlawfully occupying or invading the property I or erecting any structures on the property.

2.1.5

Occupying any vacant structures on the property.

2.2

Authorising the Applicants, duly assisted by the Sheriff and insofar as needs be, by the members of the South African National Defence Force and the South African Police Service to give effect to the provisions of this Order by: J

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2.2.1

A forthwith removing any person found to be in breach of this Order;

2.2.2

demolishing any structure erected on the property since the grant of this Order;

2.2.3

removing any possessions found at or near such structures including any B building materials, which possessions and/or building materials shall be kept in safe custody for three months by the Second Applicant until released to the lawful owner thereof and to take all reasonable steps in order to give effect to this Order.

3.

Paragraphs 2.1 and 2.2 of this Order shall operate as an Interim Order with immediate effect. For clarity it is recorded that the C provisions of paragraphs 2.1.1 and 2.1.2 shall not apply to occupation of the property by persons who are already primarily resident thereon at the time the Order is made.'

[14] Provision was made in that order for service thereof by the sheriff at the property by, inter alia, reading out the contents with a loud-hailer D and by erecting a notice board with the order pinned to it at the entrance to the premises. The court also granted any sufficiently interested party leave to anticipate the return date on 24 hours' notice to the City's attorneys.

The counter-application

E [15] On Tuesday 14 January 2014 the 42 listed persons (whom I shall call either 'the counter-applicants' or 'the occupiers') sought leave to anticipate the return date of Binns-Ward J's order. They asked for the discharge of the rule nisi granted on 10 January 2014, costs of suit and the following substantive relief:

'4.

F That a rule nisi do issue calling upon the respondents [2] to show cause on the 10th day of February 2014 why the following relief should not be made final:

4.1

declaring the conduct of the City of Cape Town in demolishing and/or dismantling the informal structures erected by the applicants at Erf 150 (remaining extent) Philippi to be G unconstitutional and unlawful;

4.2

interdicting and restraining the respondents from evicting or demolishing any informal structures erected by the applicants at Erf 150 (remaining extent) Philippi without a valid Court Order;

4.3

interdicting and restraining the respondents from demolishing, removing H or otherwise disposing of any informal structures, or the constituent materials of such structures, erected by the applicants at Erf 150 (remaining extent) Philippi;

4.4

interdicting and restraining the respondents from intimidating, harassing or assaulting the applicants or any person occupying Erf 150 (remaining extent) Philippi;

4.5

I directing the City of Cape Town to construct for those applicants, whose informal structures were demolished on 7 and 8 January 2014 and who still require them, temporary

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habitable dwellings that afford shelter, privacy, and amenities A at least equivalent to those that were destroyed and which are capable of being dismantled, at the site at which their previous informal housing structures were demolished;

4.6

directing the City of Cape Town to pay the costs of the applicants' counter-application on the attorney and client scale.' B

[16] On that day (a provisional court day during the summer recess) the matter was heard by Zondi J. The parties were of the view that the occupiers' founding affidavit in the counter-application (which served as a reply in the main application) disclosed certain material disputes of fact C which could not be resolved on the papers. They agreed that those issues be sent to oral evidence on Wednesday 19 February 2014 for...