Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others

• Jurisdiction: South Africa
• Judge: Scott JA, Cameron JA, Nugent JA, Maya JA and Snyders AJA
• Judgment Date: 30 May 2007
• Citation: 2007 (6) SA 511 (SCA)
• Docket Number: 303/06
• Hearing Date: 11 May 2007
• Counsel: G M Budlender and R Jansen for the appellants T J Bruinders SC (with M Dewrance) for the first respondent B B R Tokota SC (with M M Mojapelo) for the second and third respondents
• Court: Supreme Court of Appeal

Cameron JA:

[1] In the early hours of Friday morning 31 March 2006, about one hundred persons A were evicted from their homes on a vacant piece of land in the Pretoria suburb of Garsfontein. Officials from three governmental agencies in a joint operation expelled them from the rudimentary shelters they had erected. The pieces of plastic and other B waste materials they had salvaged from surrounding building sites to construct their homes were put to the torch. Many of their belongings were destroyed. Sixteen immigrants without South African documentation were arrested and later deported. C

[2] The operation was carried out by officials from the nature conservation division of the Tshwane metropolitan municipality (Tshwane) (first respondent), the immigration control office of the Department of Home Affairs (Home Affairs) (second respondent), and the South African Police Service (SAPS) (third respondent), accompanied by members of the Garsfontein community policing D forum. [1] Even though the Constitution provides that 'No one may be evicted from their home, or have their home demolished, without an order of Court made after considering all the relevant circumstances', [2] and even though the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) decrees that 'No person may evict an unlawful occupier except on the authority of an order of a competent E Court', [3] there was no Court order. The eviction violated the law and the Constitution.

[3] This led the first appellant - a registered non-profit organisation [4] committed to the upliftment of homeless and destitute people in the Moreleta Park area F (Tswelopele ('Progress')) - to bring an urgent application ten days later in the Pretoria High Court. Twenty three named residents who had been evicted (the occupiers) joined the proceedings as applicants. In the founding affidavit, Tswelopele's treasurer, Mr Colin Wilfred Dredge, a chartered accountant living in Moreleta Park (which borders on Garsfontein), described what he saw after receiving a call from distressed occupiers. Dwellings in which G they had been living peaceably for at least 18 months had been destroyed. In the wake of the police, Tshwane employees were burning shacks and cutting down trees. When challenged, officials from all three government agencies refused to show him authorisation under a Court order. Indeed, he says, he was threatened with arrest for H obstructing the police in the execution of their duties.

Cameron JA

[4] In the face of this, Tswelopele sought an order directing the three respondents to restore the possession of the occupiers A before all else (ante omnia), and in the interim to provide them with temporary shelter. The notice of motion also sought costs and further or alternative relief. The founding affidavit couched its claim for relief under the common law mandament van spolie: but it also expressly invoked the occupiers' procedural protections B under PIE and their rights under ss 25 [5] and 26(3) [6] of the Bill of Rights.

[5] In answer, Tshwane protested that its officials were there merely 'to eradicate alien vegetation' (even while admitting that its nature conservation division was not responsible for the site), and that they did so believing that the police 'were acting lawfully'. C Home Affairs said it participated solely 'to identify non-documented illegal immigrants'. The Garsfontein police station acting commander, Senior Superintendent John Tinyiko Masia - who admitted planning the action with the other governmental agencies - described it as but a 'crime fighting operation'. He and Home Affairs (though contradicted in this by D Tshwane's deponent) denied that any dwellings were destroyed or dwellers evicted. Instead, they said, the occupiers left 'voluntarily', leaving their waste materials behind to be cleared.

[6] Jordaan J dismissed the application. He held, following Rikhotso v Northcliff Ceramics (Pty) Ltd and E Others [7] (which concluded that the mandament van spolie is a remedy for the restoration of possession, not for the making of reparation), that because the officials had destroyed the materials used in the construction of the dwellings, the occupiers could not be restored to the possession of their homes. The Court could therefore not grant the relief they sought. F

[7] But Jordaan J declined to order costs against the applicants, not only because they were impecunious, but because the governmental agencies had acted unlawfully and had not been frank with the Court. Even applying the respondent-friendly test for determining factual disputes on opposing affidavits, he rejected the G officials' account of what had happened as 'ostensibly improbable and untruthful'.

[8] When Jordaan J granted the occupiers leave to appeal, these conflicts portended acrimonious appellate proceedings. But that was not to be. Before this Court, all three respondents significantly adjusted their approach. Mr Bruinders for Tshwane H acknowledged that the city had participated in an unlawful eviction. And at the outset of his argument Mr Tokota for Home Affairs and the SAPS recorded an unambiguous

Cameron JA

apology for what had occurred, which he described as 'unlawful' and 'unacceptable'. This A administers some belated but not insignificant balm to the injury inflicted, since in the place of unsustainable denials and evasion it substitutes a willingness to accept constitutional accountability. And it enables this Court to focus on the principal issue - which is what relief, if any, the occupiers were entitled to obtain. B

[9] But first it is necessary to consider the respondents' contention that the occupiers' appeal has become perempted.

Has the appeal become perempted?

[10] Peremption of the right to challenge a judicial decision occurs when the losing litigant acquiesces in an adverse judgment. But before C this can happen, the Court must be satisfied that the loser has acquiesced unequivocally in the judgment. [8] The losing party's conduct must 'point indubitably and necessarily to the conclusion that he does not intend to attack the judgment': so the conduct relied on must be 'unequivocal and must be inconsistent with D any intention to appeal' (Dabner v South African Railways and Harbours 1920 AD 583 at 594, per Innes CJ).

[11] The respondents based their contention on these facts:

(a)

After the unlawful eviction, the occupiers returned to the site (the respondents had after all denied that E they had been evicted). But this merely triggered a second joint SAPS/Tshwane operation four weeks later, in which the occupiers' shacks were again demolished.

(b)

Tswelopele again went to Court. It brought a second urgent application - joined this time by one named occupier, Ms Seke Esther Malefo, who was also an applicant in these proceedings, and further unnamed occupiers, who were cited collectively F as the third applicant.

(c)

On the afternoon of 19 May 2006, Bertelsmann J heard oral evidence. After Tswelopele had led some evidence, which was cross-examined on behalf of the SAPS, the matter stood down. The G parties then entered into a settlement agreement, which Bertelsmann J made an order of Court.

(d)

The order provided that 'the occupants as at 20h00 on 19 May 2006 of a vacant piece of land on the corner of De Ville Bois Mareuil and Garsfontein Roads, Moreleta Park' were to be 'moved to be accommodated at the Garsfontein Police Station' and that the H officers responsible for the police station 'will take an inventory of all those people'. On Monday 22 May 2006, Tshwane was to 'move the people to a homeless people shelter' in Struben Street, Pretoria and to 'register them on their housing subsidy programme'. Pending I

Cameron JA

finalisation of the housing subsidy application, the occupiers would A without charge 'be accommodated in the homeless people shelter'. In the meantime, the SAPS undertook 'not to harass and/or victimise [them] in any manner whatsoever, during the period of accommodation'. The respondents were ordered to pay the applicants' costs. B

(e)

Later, 50 named persons with South African identity numbers were accommodated in the Struben Street shelter. Of these, 15 survived screening and were enrolled to receive assistance from Tshwane's housing subsidy programme.

[12] On these facts the contention that Tswelopele and the occupiers abandoned the appeal cannot succeed. This is because there is C a misfit between the parties to the two proceedings, and the relief sought in each does not match.

[13] First, the list of verified applicants in the present proceedings does not coincide fully with those named or identified at D any stage of the proceedings before Bertelsmann J. Of the 23 individual applicants in this matter, only one was a named applicant in the second proceedings, and at most nine are listed amongst those accommodated in the Struben Street shelter. And we were informed from the Bar that only five were ultimately successful in their applications for housing E subsidies. At the very least, it cannot be said that those of the present appellants who did not associate themselves with or benefit from the order in the second proceedings abandoned their right to appeal.

[14] But, second, even those who did identify with or benefit from the second proceedings did not in my view abandon their challenge F to the outcome of the first. The relief sought and obtained before Bertelsmann J was temporary shelter, assistance with housing subsidy applications, and an undertaking against harassment. In the first proceedings, though...