THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No.: 734/2017

In the matter between:

STEVEN NGOMANE

FIRST APPLICANT
GEORGE MATHE                                                                                SECOND APPLICANT
PULE MANKGE                                                                                       THIRD APPLICANT
PAKISO NDUNGWANE                                                                      FOURTH APPLICANT
SYDNEY KHUMALO                                                                               FIFTH APPLICANT
MOREMI TSHEPO EVANS                                                                     SIXTH APPLICANT
GIFT MTHIMKHULU                                                                       SEVENTH APPLICANT
ANNA KHUMALO                                                                                EIGHTH APPLICANT
LERATO JOSEPH MDONGWANE                                                       NINTH APPLICANT
MORRIS MTHEMBU                                                                              TENTH APPLICANT
SBUSISO NKOSI                                                                              ELEVENTH APPLICANT
DAVID THLAPI                                                                                   TWELTH APPLICANT
HLENGIWE KHUMALO                                                          THIRTEENTH APPLICANT
SEUN MSIBI                                                                               FOURTEENTH APPLICANT
SIMON MATHE                                                                              FIFTEENTH APPLICANT
THABO MATHE

SIXTEENTH APPLICANT
THULANI NGOZO                                                                  SEVENTEENTH APPLICANT
BUTI MADUNA                                                                          EIGHTEENTH APPLICANT
MICHELLE MOFOKENG                                                         NINETEENTH APPLICANT
THAPELO SEKWATI                                                                  TWENTIETH APPLICANT
JABULANI THEO PHAKATHI                                            TWENTY FIRST APPLICANT
MATHEWS MBANA                                                          TWENTY SECOND APPLICANT
JACOB THAMSANQA GCISA                                            TWENTY THIRD APPLICANT

LERATO NHLAPO                                                            TWENTY FOURTH APPLICANT
EPHRAIM MANDENGA                                                       TWENTY FIFTH APPLICANT
EMMANUEL NOVEMBER                                                  TWENTY SIXTH APPLICANT
DOCTOR SHOPE                                                        TWENTY SEVENTH APPLICANT

and

CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY

FIRST RESPONDENT

CHIEF OF POLICE, JOHANNESBURG
METROPOLITAN POLICE DEPARTMENT,
ZWELIBANZI VELAPHI NYANDA N O

SECOND
RESPONDENT

Neutral citation: Ngomane & others v City of Johannesburg Metropolitan Municipality &

another (734/2017) [2019] ZASCA 57 (03 April 2019)

Coram:
Maya P, Dambuza, Van der Merwe and Schippers JJA and Nicholls AJA

Heard:
10 September 2018

Delivered:
3 April 2019

Summary:
Constitutional law – ss 38 and 172 (1)(a) and (b) of the Constitution –
municipality removing and destroying property comprising personal effects and
materials used to erect overnight shelter belonging to the homeless applicants in
a public health law clean-up exercise – not an eviction – applicants not entitled to
mandament van spolie or mandatory substitution of the property – destruction of
property unlawful and a breach of applicants’ rights to dignity, privacy and not to
be deprived of their property – declaration of the unlawfulness of the destruction
of the applicants’ property and compensation therefor appropriate relief.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Gauteng Local Division of the High Court, Johannesburg (R
Sutherland J sitting as a court of first instance):

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 R1 500 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, Van der Merwe, Schippers JJA 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 therefor, against the judgment of the Gauteng Local
Division of the High Court, Johannesburg (R Sutherland J). The court a quo
dismissed their 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 R 350 to R 1000
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 shelter under the bridge at night, such as cardboard boxes, wooden

1 The section reads:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without the
hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be
argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse the
application or refer it to the court for consideration.’
In terms of s 17(2)(b) ‘[i]f leave to appeal in terms of paragraph (a) is refused [ie by the judge or judges against
whose decision an appeal is to be heard], it may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month after such refusal . . . ’.

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 ss 26(3) and 25(1) 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 sub-unit of the Department of Social Development. The sub-unit

2 In terms of s 25(1) of the Constitution ‘[n]o one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property’. And s 26(3) of the Constitution provides that
‘[n]o one may be evicted from their home, or have their home demolished, without an order of court made after
considering all the relevant circumstances. No legislation may permit arbitrary evictions.’

conducted shelter management, skills development and drug rehabilitation
programmes, aimed at providing the displaced people with shelter, assist those
with drug addictions and in trouble with the law, reunite them with their families
and ultimately get them off the streets. The sub-unit ran biweekly outreach
programmes for the displaced people in and around the traffic island to inform and
educate them about the availability of municipal homeless shelters, centres with
ablution facilities and social workers and opportunities to improve their standard
of living. One municipal shelter was in the immediate vicinity of the traffic island
but required one to have a South African identity document and pay a daily R8 fee
to access it. The displaced people were, however, not interested in these services
as attested to by the head of the sub-unit.

[5] The applicants’ property was removed during what the City and the second
respondent, the Chief of Police, Johannesburg Metropolitan Police Department,
Zwelibanzi Velaphi Nyanda N O, described as ‘a clean-up’ operation of the area
conducted pursuant to the City’s by-laws.3  The operation was prompted by
numerous complaints lodged with the City by the various businesses trading
around the traffic island4 and members of the public about the occupation of
pavements designated for the purpose of customer and public vehicle parking by
homeless people, public defecation and urination on the pavements, excessive
rubbish and waste, public abuse of illicit drugs and the disposal of used syringes,
theft, robberies and related crimes in the area. The respondents denied that any
eviction was committed or that any shelter was destroyed during the clean-up
operation. They alleged that their officials merely removed rubbish which was
found unattended or abandoned and disposed of it in a landfill. The City denied

3  The City of Johannesburg Metropolitan Municipality Public Health By-Laws (Published under Notice No. 830 in
Gauteng Provincial Gazette Extraordinary No 179 dated 21 May 2004).
4 Mr Byron Beedle, the owner of a wholesale and distribution entity, Trans Tool Distributors (Pty) Ltd, situated
directly adjacent to the traffic island, which had traded there for about 80 years, filed an affidavit confirming his
complaint and the intolerable goings-on of the homeless people living on the island.

that any valuable personal items were removed and explained that its procedure
during clean-up exercises which involved the removal of people’s personal
belongings required the preservation of any valuable items, which would be
inventoried and kept for collection by the owners.

[6] It transpired that a good Samaritan, Mr Nigel Branken, had chanced upon
the incident and managed to record a video of part of the operation. The video
footage was admitted into evidence. It showed him remonstrating with the JMPD
officials, telling them that they were removing ‘people’s possessions’ to which
one official responded that ‘these people are occupying a space which is not
theirs’. The footage also showed the officials indiscriminately gathering and
throwing mattresses, blankets, bulging suitcases, bags and rucksacks into a truck
without checking their contents. However, the officials were not shown engaging
with anyone else and merely went about removing the property. Nor did it appear
that there was anyone else who was interested in the property at the scene.

[7] The court a quo found that the video footage established that the JMPD
officials, although not shown chasing away or threatening anyone as alleged by
the applicants, were well aware that they were removing ‘domestic goods which
would be the typical material that homeless people would be using’. Whilst the
court accepted that the JMPD officials did not inventory the property, it was
highly sceptical of the claims for items such as cash, cell phones and identity
documents which one would normally keep on their person and hardly leave
unattended on a public thoroughfare. The court rejected the applicants’ claim that
their shelters were demolished as it was their own version that they were
dismantled every morning and on that day too, and that the JMPD officials merely
removed the loose materials they left on the traffic island. The court a quo then
dismissed the vindicatory claim on the basis that the property in issue was

inadequately described and had, in any event, been destroyed and could therefore
not be returned.

[8] The alternative claim was also given short shrift. Relying on a judgment of
this court, Tswelopele Non-Profit Organisation & others v City of Tshwane
Metropolitan Municipality & others,5 the court a quo held that mandament van
spolie did not entitle the dispossessed applicants to vindicate their lost property by
its substitution. The court a quo pointed out that this decision did not deprive them
of a remedy as they could pursue a damages claim even if such relief would not be
viable having regard to the negligible value of their property. In the court’s view,
that practical consideration was not a denial of their rights as the scope of
available relief was not limited to patrimonial loss.

[9] Regarding the eviction claim, the court a quo found that the traffic island
was a public thoroughfare designated for the purpose of facilitating traffic and
could not be equated with a ‘home’ or ‘land’ as envisaged in s 26 of the
Constitution and s 1 of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998 (the PIE Act). The court reasoned that ‘the
habitual act of sleeping rough on a traffic island in a “shelter” put up and taken
down each night is not an act, which properly construed, can constitute
“occupation”’ for the purposes of these provisions. And where there was no
occupation, there could be no eviction. The court a quo concluded that the actions
of the respondents’ personnel did not constitute an eviction of the applicants.

[10] As to the alleged breach of the applicants’ right to dignity, the court a quo
found that the JMPD officials’ conduct in summarily discarding their property, no

5  Tswelopele Non-Profit Organisation & others v City of Tshwane Metropolitan Municipality & others 2007 (6) SA
511 (SCA) paras 20-26.

matter its condition, ‘was a cynical and mean spirited act deserving of censure’
and that if they acted in accordance with the respondents’ policy then that policy
had to be stopped. Accordingly, it made an extensive order,6 calling upon the City
to show cause why certain procedures should not be followed during the cleaning
of public places to safeguard personal belongings removed in that process. The
Rule Nisi was confirmed unopposed in due course. But that order had no impact
on the relief sought by the applicants. They also did not challenge the court a
quo’s order refusing their prayer raised for the first time during argument under
the rubric of their prayer for ‘further and alternative relief’’ – to interdict the City
from threatening, harassing and dealing with them directly.

[11] On appeal before us, the applicants characterised the issues as follows:
whether (a) the traffic island they occupied constituted ‘land’ as envisaged in the

6 The order read:
‘2. a Rule Nisi is issued calling upon the Respondents to show cause on 26th of  May 2017 why an order in the
following terms should not be made:
2.1 whenever the officials employed by the Respondents, in the execution of any lawful action to enforce the by-
laws remove material from a public place, such officials shall compose an inventory of every item so removed, save
where it is manifest that the item is waste material.
2.2 the officials shall photograph all material removed and record the place, date, and time of removal and record it
by a cross reference to the inventory.
2.3 officials deployed to perform the exercise shall be clearly identifiable as officials of the First Respondent, and a
log shall be kept of the name of every official who is present at every such exercise.
2.4 when intent on removing material from a public place, officials shall make reasonable enquiries in the
immediate vicinity as to the presence of possible claimants of the material sought to be removed, and if they can be
located, and their identity confirmed, and they can demonstrate, convincingly, that any item is their belongings,
they shall:
2.4.1 be put in possession of all items that they are able to carry away.
2.4.2 be invited to call at a designated place during office hours to collect the balance of their claimed possessions,
which shall, in the inventory, be so recorded, and the items tagged.
2.5 all such items collected shall be kept in a designated place for not less than 30 days.
2.6 a notice shall be displayed at the place from which the materials were taken informing whomsoever is
concerned where the material is being kept, for how long, and the procedure to retrieve any items, the name of the
official responsible for the safekeeping of the material, and that person’s telephone number and email address.
2.7 a report shall be furnished to Sutherland J, 90 days after this order is issued, by the Second Respondent and by
the chief legal adviser of the First Respondent, supported on affidavit, listing the number of such exercises carried
out, and accounting fully for the orders herein set out having been effectively implemented, and if appropriate,
Sutherland J shall direct that further reports shall be furnished.
2.8 a copy of the reports shall at the same time be furnished to Lawyers for Human Rights.
3. Paragraphs 2.1 to 2.6 shall operate as an interim order, pending the return day.’

PIE Act and the temporary structures constituted their home and shelter; (b) the
clean-up operation conducted by the respondents constituted an eviction from land
to which the provisions of the PIE Act apply; (c) they ought to have been granted
a constitutional remedy similar to that crafted in the case of Tswelopele ordering
the return of goods and materials similar to those confiscated by the City and (d)
whether they should be awarded punitive constitutional damages (which was
raised for the first time in this Court).

[12] The essence of the applicants’ contentions was that the traffic island was
their ‘place of residence or abode’ and their home within the meaning of s 26(3) of
the Constitution from which they had been unlawfully evicted because they had
occupied it for periods between two and five years, albeit using it as overnight
shelter. We were urged to interpret the PIE Act and its definition of ‘land’
purposively to include the traffic island. It was further contended that their plastic
sheets, cardboard boxes and wooden pallets fell within the definition of ‘building’
or ‘structure’ in s 1 of the PIE Act on a purposive construction, and that their
removal constituted a demolition of their homes or structures and an unlawful
eviction from their homes. It was also argued that they could not be removed from
the traffic island until the City provided them with alternative accommodation and
that they were entitled to constitutional relief.

[13] I accept the court a quo’s findings regarding the events of 1 February 2017
as sound. The invaluable and indisputable evidence presented by the video footage
put paid to any possible dispute of fact. It established that the JMPD officials
confiscated various domestic goods which they found stored under the bridge that
were clearly not rubble. Mr Branken’s running commentary throughout the
recording, chastising the officials for callously removing poor people’s
belongings, and the response which his comments elicited from one of the

officials, that the owners of the goods had no right to occupy that space, indeed
made clear that the officials knew that homeless people lived there and owned the
goods they were removing. The respondents’ denials in this regard and the
allegations regarding inventory taking of valuable property are rendered
completely untenable in the circumstances and may be rejected out of hand. The
footage also showed, as observed by the court a quo, that no attempt at all was
made by the officials to check the contents of the bags. The goods were simply
collected and summarily thrown into the back of the truck. The footage further
established that no ‘structures’ of any sort were demolished and no one was
assaulted or ill-treated in any manner during the operation.

[14] It is against this factual background that the applicants’ contentions must be
considered. The respondents’ critical concession regarding the unlawfulness of the
removal and destruction of the property was a strong indication that the
application for leave to appeal was not without merit and the applicants gave a
satisfactory explanation for their delay in launching it. It is convenient to deal with
the application and the merits of the case together.

[15] The applicants sought no relief in terms of the PIE Act. Strictly speaking,
therefore, their persistent contentions regarding the alleged destruction of their
homes without an order of court and eviction, in their founding affidavit and in
argument both in the court a quo and on appeal before us, bear no relevance in the
matter. However, I think it expedient to deal with the contentions, albeit very
briefly, to dispel the applicants’ misapprehension relating to the protections
provided by the PIE Act in light of their belated claim for constitutional damages.

[16] In terms of s 1 of the PIE Act, ‘unless the context indicates otherwise …
‘’building or structure” includes any hut, shack, tent or similar structure or any

other form of temporary or permanent dwelling or shelter’.  According to the
Oxford English Dictionary, a building or structure is a ‘construction, edifice,
erection or other object constructed from several parts or material put together …
that has a roof and walls’. To ‘build’ envisages an act of ‘putting up, setting
together, assembly, creating or manufacture’. In this case, the JMPD officials
found and took away a pile of loose wooden pallets, cardboard boxes and plastic
sheets at the traffic island. Evidently, not even the most generous interpretation of
the words ‘building or structure’, temporary or permanent, can lead to the
conclusion that the material confiscated falls within their meaning. There were
simply no buildings or structures that could be demolished and no demolition
occurred.

[17] There was, similarly, no eviction. It is therefore not necessary to decide
whether a public thoroughfare such as the traffic island, which is demarcated to
provide parking for motor vehicles in the heart of a busy business district, is
equivalent to ‘vacant land’ or a ‘public park’ and whether habitually sleeping on it
may constitute ‘occupation’ for purposes of the PIE Act.

[18] The matter does not end there, however. Having established that the
applicants’ property was unlawfully destroyed, what remains is whether they may
be granted any relief in these proceedings and, if so, to ascertain the extent of the
harm they suffered.  The applicants sought an order directing the respondents to
return their property and shelter material; alternatively that they be provided with
similar material and possessions. In this regard the court a quo, in my view,
correctly held that the applicants could not invoke the mandament van spolie. A
spoliation order is a preliminary and provisional possessory remedy that is granted
on the assumption that the property in issue in fact exists and may be awarded in
due course to the properly entitled party; it cannot be granted if the property no

longer exists as a remedy to replace it as possession cannot be restored by
substitution.7

[19] This Court eloquently reiterated this principle as follows in Tswelopele:8
‘While the mandament clearly enjoins breaches of the rule of law and serves as a disincentive to
self-help, its object is the interim restoration of physical control and enjoyment of specified
property – not its reconstructed equivalent. To insist that the mandament be extended to
mandatory substitution of the property in dispute would be to create a different and wider
remedy than that received into South African law, one that would lose its possessory focus in
favour of different objectives (including a peace-keeping function) . . . .  I do not think that
formulating an appropriate constitutional remedy in this case requires us to seize upon a
common-law analogy and force it to perform a constitutional function.’

[20] The court in Tswelopele, however, crafted a constitutional remedy for the
reconstruction of the destroyed structures because the other possible alternative
remedies, such as placing the applicants on the list for emergency housing
assistance, would ‘not attain the simultaneously constitutional and individual
objectives that re-construction of their shelters would achieve’. For these reasons,
an order mandating substitution of the unlawfully destroyed property is
inappropriate in this case.

[21] What is clear however, is that the confiscation and destruction of the
applicants’ property was a patent, arbitrary deprivation thereof 9 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’. The conduct of the respondents’
personnel was not only a violation of the applicants’ property rights in their
belongings, but also disrespectful and demeaning. This obviously caused them

7 Rikhotso v Northcliff Ceramics (Pty) Ltd & others 1997 (1) SA 526 (W) at 534 D.
8 Paras 24 and 26.
9 In breach of s 25(1) of the Constitution.

distress and was a breach of their right to have their inherent dignity respected
and protected.10

[22] In the circumstances, the respondents’ conduct must be declared inconsistent
with the Constitution and therefore unlawful, as required by s 172(1)(a) thereof.11
This finding entitles the applicants to appropriate relief for the violation of their
fundamental rights as envisaged in s 38 of the Constitution.12 As to what
constitutes ‘appropriate relief’, the Constitutional Court the Constitutional Court
said in Fose13:

‘It is left to the courts to decide what would be appropriate relief in any particular case.
Appropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure
that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do
so, the courts may even have to fashion new remedies to secure the protection and enforcement
of these all-important rights.’

And at para [69]:

‘[T]his Court has a particular duty to ensure that, within the bounds of the Constitution,
effective relief be granted for the infringement of any of the rights entrenched in it…
Particularly in a country where so few have the means to enforce their rights through the courts,
it is essential that on those occasions when the legal process does establish that an infringement
of an entrenched right has occurred, it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies,

10 Section 10 of the Constitution.
11 Section 172(1) (a) and (b) of the Constitution empowers a court ‘deciding a constitutional matter within its power
. . .  must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency’.
12 Section 38 of the Constitution provides:
‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights
has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.’
13 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) paras 18 and 19.

if needs be, to achieve that goal.’

[23] Although the applicants sought only the return of their property, it bears
mention that a claimant in respect of a constitutional breach that has been
established is not necessarily bound to the formulation of the relief originally
sought or the manner in which it was presented or argued.14  Thus, it matters not
that the applicants sought to vindicate their constitutional rights for the first time
in this Court.

[24] As the court a quo observed, the applicants’ property was not sufficiently
described to enable the respondents to replace it with similar goods, or place a
reliable value on the property. In this regard the schedule attached to the founding
affidavit
listed
the

property
confiscated
simply
as
‘mattress’,
‘cosmetics/toiletries’,   ‘groceries’, ’clothes’, ‘baby clothes’, ‘blankets’, ‘cell
phone’, ‘books’, ‘toys for sale’, ‘tools to fix trolley’, ‘present for mother’ and
‘medicine/treatment’ without actually specifying those items and their worth.
Apart from the vague description of the property, it is extremely difficult to place
a commercial value on it. For example, six mattresses, various items of clothing
and blankets (probably extensively used with no commercial value) were
removed, but these items were very valuable to their owners, and all that they
possessed. As stated in the founding affidavit:
‘Our belongings are meagre and our homes may appear ramshackle, but this is all we have, and
this is what affords us the only bit of dignity which we enjoy’.

[25] In light of these facts, I do not think that the applicants should be left to

14 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 & others v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici Curiae)2004 (6) SA 40 (SCA) para 18; Carmichele v Minister of
Safety and Security &  another (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC); 2001 (10)
BCLR 995 (CC); Bannatyne v Bannatyne (Commission for Gender Equality, amicus curiae) 2003 (2) SA 363 (CC);
2003 (2) BCLR 111 (CC); President of the Republic of South Africa & another v Modderklip Boedery (Pty) Ltd
(Agri SA & others, Amici Curiae) 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC)  para 53.

pursue the ordinary remedy in the form of a damages claim as suggested by the
court a quo. They lamented the practical difficulties posed by this route, which
were acknowledged by the court itself.  Instituting a damages claim would involve
them in costly and time-consuming civil litigation in respect of property, which
although valuable to them, is otherwise mostly of trifling commercial value. The
undisputed evidence is that many of the applicants daily search for work and
collect recyclable materials, which they sell in order to survive. They would be
hindered in this if they were required to attend court proceedings. They have no
money for transport to attend court. And for the very reason that it would not be
possible for them to prove the market value of the property destroyed in the
conventional way, an action for damages is not an appropriate remedy. Such an
action is likely to fail or result in a nominal award of damages.

[26] During argument before us counsel for the applicants indicated that they
would be willing to accept a standard, nominal amount of R 1 500 for each
applicant, as compensation for the loss of their property and the wrong they have
suffered.  At this point I should mention that the plastic sheets, cardboard boxes
and wooden pallets were not listed in the schedule as the applicants confirmed
during argument that those materials, which have no monetary value, were easy to
scavenge and would immediately have been replaced by them.  Thus no
compensation was sought for these materials.

[27] The respondents however were not willing to accede to the applicants’
proposal.  The amount of R 1 500 for each applicant, R 40 500, is not a large sum
of money. But, in my view, it constitutes appropriate relief in the specific
circumstances of this case. It will vindicate the Constitution and protect the
applicants and others similarly situated against violations of their rights to dignity

and property in the manner envisaged in Fose.15 This is particularly so, given the
applicants’ willingness to accept this amount as redress for the wrong they have
suffered; the declaratory order and costs award issued below; and the order by the
court a quo in relation to the removal by the City of property of homeless people
from public places (which hopefully in future will have the desired effect and
prevent a recurrence of conduct of the kind in question).

[28] Accordingly, the following order is made:

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 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 R1 500 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.’

_____________________________________________
MM Maya

15 See fn 11.

PRESIDENT OF THE SUPREME COURT OF APPEAL

APPEARANCES:

APPLICANTS:
A De Vos (with NS Mteto)

Instructed by:
Lawyers for Human Rights, Johannesburg
Webbers Attorneys, Bloemfontein

RESPONDENTS: C Georgiades SC (with R Scholtz)
Instructed by:
Molefe Knight Inc Attorneys, Johannesburg
Molefe Knight Inc Attorneys, Bloemfontein