Ngomane and Others v Johannesburg (City) and Another

• Jurisdiction: South Africa
• Citation: 2020 (1) SA 52 (SCA)

Ngomane and Others v Johannesburg (City) and Another
2020 (1) SA 52 (SCA)

2020 (1) SA p52

Citation	2020 (1) SA 52 (SCA)
Case No	734/2017; [2019] ZASCA 57
Court	Supreme Court of Appeal
Judge	Maya P, Dambuza JA, Van Der Merwe JA, Schippers JA and Nicholls AJA
Heard	April 3, 2019
Judgment	April 3, 2019
Counsel	A de Vos (with NS Mteto) for the appellants.; C Georgiades SC (with R Scholtz) for the respondents.

Flynote : Sleutelwoorde

Constitutional law — Constitutional damages — Award — Local authority unlawfully removing homeless people's property from public space and destroying it — Such action in breach of their constitutional rights to dignity, privacy and not to be deprived of property — Constitutional damages appropriate remedy — Constitution, ss 38 and 172(1)(a).

Headnote : Kopnota

The respondent municipality, during a public health law clean-up exercise, removed and destroyed property comprising personal effects and materials used to erect overnight shelter belonging to the homeless appellants. This case concerned an appeal to the Supreme Court of Appeal (with its leave) by a number of the affected homeless people against the High Court's dismissal of their application for the return their confiscated personal belongings and materials, alternatively that they be provided with similar material and possessions, and/or ancillary relief.

The SCA agreed with the High Court that a spoliation order was not appropriate in the circumstances (see [18]). However, one of the grounds of appeal (a point not considered by the High Court but raised for the first time on appeal) was that they should be awarded punitive constitutional damages (see [11]). The SCA, considering this ground —

Held

The confiscation and destruction of the applicants' property was a patent, arbitrary deprivation thereof and a breach of their right to privacy enshrined in s 14(c) of the Constitution, 'which includes the right not to have . . . their possessions seized'. Also, the conduct of the respondent's personnel was not only a violation of the applicants' property rights in their belongings, but also disrespectful and demeaning. This obviously caused them distress, and was a breach of their right to have their inherent dignity respected and protected. In the circumstances, the respondent's conduct must be declared inconsistent with the Constitution and therefore unlawful, as required by s 172(1)(a) thereof. This finding entitled the applicants to appropriate relief for the violation of their fundamental rights as envisaged in s 38 of the Constitution. (See [21] – [22] and [27].)

An amount of R1500 for each applicant, R40 500 in total, was not a large sum of money, but it constituted appropriate relief in the specific circumstances of this case. It would vindicate the Constitution and protect the applicants and others similarly situated against violations of their rights to dignity and property. The appeal would accordingly be upheld. (See [27] and [28].)

Cases cited

Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111; [2002] ZACC 31): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

2020 (1) SA p53

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): applied

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821; [2004] 3 All SA 169): dictum in para [18] applied

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC) (2005 (8) BCLR 786; [2005] ZACC 5): referred to

Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 (1) SA 526 (W): dictum at 534D applied

Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA) ([2007] ZASCA 70): dicta in paras [24] and [26] applied.

Legislation cited

The Constitution of the Republic of South Africa, 1996, ss 38 and 172(1): see Juta's Statutes of South Africa 2018/19 vol 5 at 1-26 and 1-46.

Case Information

A de Vos (with NS Mteto) for the appellants.

C Georgiades SC (with R Scholtz) for the respondents.

An appeal from the Gauteng Local Division of the High Court, Johannesburg (Sutherland J).

Order

1.

The application for leave to appeal and condonation for its late filing is granted.

2.

The appeal is upheld with costs including the costs, of two counsel.

3.

Paragraph 1 of the order of the court a quo is set aside and replaced with the following:

'(a)

It is declared that the destruction of the applicants' property listed in the applicants' schedule of reported losses annexed to the founding affidavit, by the first respondent on 1 February 2017, was unconstitutional and unlawful.

(b)

The first respondent shall pay each applicant the sum of R1500 as compensation for the destruction of his or her property on 1 February 2017, within 30 calendar days of the date of this order.

(c)

The respondents shall pay the costs of the application, jointly and severally, the one paying the other to be absolved.'

Judgment

Maya P (Dambuza JA, Van der Merwe JA, Schippers JA and Nicholls AJA concurring):

[1] The applicants are a group of destitute, homeless people who made a home for themselves on a traffic island under the R31 highway bridge on End Street, between Durban and Meikle streets, in the business district of the City of Johannesburg Metropolitan Municipality (the City). They seek leave to appeal and condonation for the late filing thereof, against the judgment of the Gauteng Local Division of the High Court, Johannesburg (Sutherland J). The court a quo dismissed their

2020 (1) SA p54

Maya P (Dambuza JA, Van der Merwe JA, Schippers JA and Nicholls AJA concurring)

application for the return of their personal belongings and materials, alternatively to be provided with similar material and possessions, confiscated by officials of the Johannesburg Metropolitan Police Department (JMPD) from the traffic island, and ancillary relief. The court a quo refused their subsequent application for leave to appeal against that decision and, upon further application to this court, their application was referred for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013. [1]

[2] According to the applicants, they had lived under the bridge for significant periods of time, and the majority of their group for at least two years. Twenty-two of their group were employed and obtained income ranging from R350 – R1000 a month from collecting recyclable material. They could not afford to pay rent for accommodation and regarded the traffic island, which separates a busy street with various trading businesses on either side, as their home as they lived and stored their property on it. They alleged that the property comprised personal effects, including food, mattresses, blankets, clothing, money, identity documents and other important documents and various materials which they used to build makeshift shelters under the bridge at night, such as cardboard boxes, wooden pallets and plastic sheeting. They used the plastic sheets and cardboard boxes to construct their beds, and the pallets served as temporary walls to demarcate each individual's space, house their belongings and provide them with some privacy. Each morning they would dismantle the makeshift structures, pack the material and leave it and the rest of their belongings on the traffic island as they went about in search of food and work.

[3] On the day in question JMPD officials descended upon the traffic island in a convoy of motor vehicles, which included municipal waste- removal trucks. They hurled insults at the applicants and kicked and sprayed some of them with pepper spray in a bid to drive them away from the location. They then loaded all the applicants' belongings on the trucks and took them away. The officials had not engaged with the applicants before the operation in any manner and confiscated their belongings without the authorisation of a court order. The applicants further contended that the conduct of the respondents' officials constituted an eviction from their homes and breached their rights under

2020 (1) SA p55

Maya P (Dambuza JA, Van der Merwe JA, Schippers JA and Nicholls AJA concurring)

ss 25(1) and 26(3) of the Constitution [2] not to have their homes demolished without an order of court and not to be deprived of their property unlawfully, respectively, and their rights to dignity and adequate shelter.

[4] The respondents opposed the application. In an answering affidavit filed by the City on their behalf, it explained that it had an ongoing challenge of displaced people, who resided on its streets, many of them evicted from their communities as a result of criminal activity or drug addiction. To counter the problem, it established a subunit of the Department of Social Development. The subunit conducted shelter management, skills development and drug-rehabilitation programmes, aimed at providing the displaced people with shelter, assisting those with drug addictions and in trouble with the law, reuniting them with their families and ultimately getting them off the streets. The subunit ran biweekly outreach programmes for the...