Fischer and Another v Ramahlele and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Theron JA, Wallis JA, Hancke AJA and Swain AJA
• Judgment Date: 04 June 2014
• Citation: 2014 (4) SA 614 (SCA)
• Docket Number: 203/2014 [2014] ZASCA 88
• Hearing Date: 27 May 2014
• Counsel: Anton Katz SC (with M Adhikari) for the appellants. S Margadie for the respondents. S Wilson (with Z Makgalemele) for the first amicus curiae. CDA Loxton SC (with AW Pullinger) for the second amicus curiae.
• Court: Supreme Court of Appeal

Theron JA and Wallis JA (Mpati P, Hancke AJA and Swain AJA concurring):

[1] On 27 May 2014 this court granted an order as set out above. These are the reasons for that order. H

[2] On 7 and 8 January 2014 the City of Cape Town's Anti Land Invasion Unit (the Unit), with the assistance of both the Metro Police and the South African Police Service (SAPS), demolished certain structures erected on erf 150 (remaining extent), Philippi, the property of I Mrs Iris Fischer, an elderly widow. On 10 January 2014 Mrs Fischer and the City, the first and second appellants, respectively, launched an urgent application (the main application) seeking an interdict restraining

Theron JA and Wallis JA (Mpati P, Hancke AJA and Swain AJA concurring)

A a group of persons described as 'persons whose identities are to the applicants unknown and have attempted or are threatening to unlawfully occupy erf 150 (remaining extent), Philippi' from seeking to occupy that property or erecting structures thereon.

[3] A rule nisi was issued in the main application and the return date was B anticipated by Mr Ramahlele and 40 other people, who opposed the confirmation of the rule nisi. They in turn launched a counter-application against the City, in which they alleged that they had been in peaceful and undisturbed possession of the structures which they had erected on the property, and that the demolished structures were their homes. They C sought the following relief in the counter-application:

'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 unconstitutional and unlawful.

4.2

Interdicting and restraining the respondents from evicting or D 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 respondent from demolishing, removing or otherwise disposing of any informal structures, or the constituent materials of such structures, erected by the applicants at erf 150 (remaining extent) Philippi.

E . . .

4.5

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

The high court (Gamble J) granted declaratory relief and mandatory interdicts against the City in the counter-application, substantially in the form sought. This appeal is against that judgment with the leave of the G high court.

[4] Mrs Fischer is the registered owner of the property which is situated on the Cape Flats, south of Cape Town International Airport and adjacent to another long-standing informal settlement. The property is approximately 2,7 hectares in extent, unfenced, and according to the city H has been covered with dense and overgrown shrubbery. Mrs Fischer has resided on the property for the past 47 years. There are two brick structures on the property, one consisting of three bedrooms and the other of two bedrooms. Mrs Fischer and her son Reuben reside in the one structure and the other structure is occupied by Mrs Fischer's other I son William and his family. The respondents are a group of 37 homeless and poor people who lived in the rural areas of the Eastern Cape and moved to Cape Town to find employment. None of the respondents have full time employment and they survive from hawking, part-time domestic work and social grants.

[5] Until May 2013 the Fischers resided on the property without J interference. In May 2013 unlawful occupiers began to invade the

Theron JA and Wallis JA (Mpati P, Hancke AJA and Swain AJA concurring)

property for the first time. This invasion took place in relation to the A property as well as several neighbouring properties. The city at that stage took measures, carried out by members of the Unit, to curtail and manage the invasion. Between 30 April 2013 and 1 May 2013 the City dismantled a number of illegal structures, both on the property and on neighbouring properties. Between June and August 2013 city officials B conducted regular patrols in the area in order to prevent further incursions onto the property by unlawful occupiers. During this period approximately 20 structures were erected on the property and became occupied. According to the City, these structures are currently on the property.

[6] During August 2013 the City advised Mrs Fischer to obtain legal C assistance on removing the occupiers from the property. The City also served a notice on Mrs Fischer in terms of which she was directed to take steps to evict the unlawful occupiers. Mrs Fischer subsequently instructed an attorney who, despite accepting partial payment, did not provide any meaningful assistance to her. Since she did not have the D necessary finances to secure alternative legal representation, she sought assistance from the city and SAPS but was informed by the latter that they would not be able to assist her without a court order.

[7] According to the City, a large group of people, whom it contends E include the respondents, started erecting structures on the property on 7 January 2014. City officials were called to the property and commenced with an operation to dismantle the structures which were recently erected or in the process of being erected on the property at the time. In an affidavit filed on behalf of the City, Mr Stephen Clyde Hayward, the head of the Unit, described the events that occurred on 7 and 8 January 2014: F

'13.9

On 7 January 2014, there were about fifteen vehicles queuing up on the side of Sheffield Road. The vehicles contained building materials of persons who were seeking to erect structures on the property. Some persons were already erecting structures on the property, while others were queuing up to do so. On the same G day, the city demolished thirty two structures on the property. The city was cautious in the approach it applied in this regard and was guided by the following:

"The city did not demolish or indeed interfere with any structures that appeared to be a home or a dwelling. In H any event, they were certainly not structures that were occupied. In this regard, [the] city monitored the property. At about 2 pm on 7 January 2014, the city noticed that persons were moving onto the property and erecting structures thereon. The city has staff that undertakes random patrols of hot spot areas for land invasions, as the I property was. In addition, the city received an alert of the impending invasion. The city immediately informed SAPS and the Law Enforcement Metro Police. At 5p.m. the city convened a planning session to respond to the invasion at the Metro Police in Philippi. The demolition operation started at 6 pm and, as stated, thirty two structures were ultimately demolished. I state without J

Theron JA and Wallis JA (Mpati P, Hancke AJA and Swain AJA concurring)

A reservation that none of these structures constituted dwellings or a persons' home and nor were they occupied. Given that the Anti Land Invasion Unit had regularly patrolled the area since May 2013, its members were familiar with structures that had already been erected on the property and were cautious not to interfere B with those structures. Instead, it was only structures that had been constructed (and uninhabited) or were in the process of being constructed that were demolished. I once again reiterate, no one was residing in the structures that were demolished. When the Law Enforcement Agencies left the property on 7 January 2014 (at about C 7 pm) there were between 20 and 30 structures on the property. I should mention that even at that stage there were about ten more structures that were left (due to some degree of uncertainty by the enforcement officers as to whether they were occupied or not).''

'13.10

Notwithstanding the aforegoing, when the law enforcement D officials returned to the property on 8 January 2014 (at about 9 am) there were about a further fifteen new structures (that had been re-erected overnight). The city immediately launched an operation to demolish those structures. I should again reiterate that none of the structures which the city demolished were "dwellings", "homes" or indeed inhabited by people. The E structures had been erected over a period of 12 to 15 hours (ie between the city having left the property the previous day and having returned the next day). This operation concluded at about...