Legality of occupation of property by homeless persons

June 1st, 2019
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Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another (SCA) (unreported case no 734/2017, 3-4-2019) (Maya P) (Dambuza, Van der Merwe, Schippers JJA and Nicholls AJA concurring)

‘Homelessness is a problem experienced worldwide, regardless of a country’s economic status. In South Africa, an estimated 100 000 to 200 000 people are living on the streets. With harsh weather conditions, no access to ablution facilities and no income, people living this way are arguably the most destitute in the country’ – Kerry-Lee Black (‘Exploring the lived experiences of homelessness in a Cape Town suburb’ (Dissertation, University of Cape Town, 2017) at 1).

As a result, on being homeless and not being able to afford rent for accommodation, people usually occupy vacant land or perhaps any place where they can make a home for themselves – by building structures with material they have collected. On 3 April, the Supreme Court of Appeal (SCA) delivered judgment in the case of Ngomane, where it was approached to provide relief for applicants, a group of destitute and homeless people who had made a home for themselves on a traffic island under the R31 highway bridge over End Street, between Durban and Meikle Streets, in the business district of the City of Johannesburg Metropolitan Municipality (the City). As such, this case note, and commentary will focus on the facts and background of the case, and the court’s decision in the matter.

Legal background

The applicants approached the SCA for leave to appeal against the decision of the Gauteng Local Division of the High Court in Johannesburg. The applicants had sought an order directing the respondents to return their personal belongings and material; alternatively, that they be provided with similar material and possession thereof. The applicants’ property was confiscated and destroyed by the Johannesburg Metropolitan Police Department (JMPD). The basis of their application was that the traffic island constituted a place of residence and home within the meaning of s 26(3) of the Constitution, thus rendering the conduct of the JMPD an unlawful eviction.

The court’s decision

The court firstly determined whether the applicants’ property constituted a building or structure in terms of s 1 of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The court held that the pile of loose wooden pallets, cardboard boxes and plastic sheets belonging to the applicants could not be interpreted as buildings or structures within the meaning of s 1 of PIE. Therefore, the conduct of the JMPD did not amount to eviction.

Nonetheless, the applicants’ property was unlawfully destroyed. The court went on to establish whether the applicants had any remedy and if so, this enabled the court to determine the harm suffered by the applicants. It agreed with the court a quo, that the applicants could not invoke the mandament van spolie (spoliation order), on the basis that such order is applicable and granted where the property in question is in existence and may be returned to the rightful/lawful owner. As such, the spoliation order cannot be granted if the property in question has been destroyed. The SCA reiterated what was said in Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA) at paras 24 to 26:

‘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.’

In rejecting the spoliation order relief, the court held at para 21 that: ‘What is clear, however, is that the confiscation and destruction of the applicants’ property was a patent, arbitrary deprivation thereof [as provided in s 25(1) of the Constitution] 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 respondents’ conduct was further characterised as ‘disrespectful and demeaning’. The court held that this, in effect, resulted in distress and violated the applicants’ right to dignity.

Therefore, the respondents’ conduct was unconstitutional and unlawful, thus entitling the applicants to obtain the appropriate relief as envisaged in s 38 of the Constitution. As to what constitutes appropriate relief, the court relied on Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at paras 18 and 19.

The court then upheld the application for leave to appeal and condonation for late filing, with costs, and ordered that –

  • the destruction of the applicants’ property was unconstitutional and unlawful;
  • the first respondent had to pay each applicant a sum of R 1 500 as compensation for the destruction of their property; and
  • the respondents had to pay the costs of the application, jointly and severally, the one paying the other to be absolved.

Conclusion

The court dismissed the applicants’ reliance on s 26(3) of the Constitution and PIE, and held that the property of the applicants did not constitute a building or structure within the meaning of s 1 of PIE. It, however, ensured that the applicants obtained alternative relief, namely, a payment of R 1 500 each. This was a fair decision. However, I am of the view that the court could have suggested to the respondents – that, in future, when they embark on the ‘clean-up’ operation, a (written) notice should be given to the people who stay in the area, which has to be cleaned. People who stay in places such as those in which the applicants lived, are also members of society and they should be treated with dignity and they should enjoy the same human rights as everyone else. Despite living in a place not falling within the meaning of s 1 of PIE, a written notice before clearing the place should have preceded any action. Furthermore, the clean-up by the officials should be carried in a manner that respects and protects the inherent dignity of those affected.

Mziwamadoda Nondima BA LLB (Rhodes) is a candidate legal practitioner at Boqwana Burns Inc in Port Elizabeth.

This article was first published in De Rebus in 2019 (June) DR 24.