Steven Ngomane & 26 others v City of Johannesburg Metropolitan Municipality & another

The applicants were a group of 27 homeless people who lived on a traffic island under the R31 highway bridge on End Street in Johannesburg's business district. Most had lived there for at least two years. Twenty-two were employed collecting recyclable material, earning between R350-R1000 per month. Each morning they dismantled makeshift shelters constructed from cardboard boxes, wooden pallets and plastic sheeting, leaving these materials and their personal belongings (mattresses, blankets, clothing, food, documents) on the traffic island while they sought work. On 1 February 2017, JMPD officials arrived in a convoy with waste removal trucks and removed all the applicants' belongings without a court order, loading them onto trucks. The officials allegedly insulted, kicked and pepper-sprayed some applicants. Video footage recorded by a bystander confirmed officials were removing domestic goods belonging to homeless people, throwing bulging suitcases, bags, mattresses and blankets into trucks without checking contents or taking inventory. The City claimed this was a lawful "clean-up" operation pursuant to public health by-laws in response to complaints from businesses about public defecation, drug abuse, theft and obstruction of parking by homeless people. The City denied removing valuable items and claimed their policy required inventorying and preserving valuable property.

• Whether the traffic island constituted 'land' and the temporary structures constituted a 'home' for purposes of section 26(3) of the Constitution and the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE Act)
• Whether the removal of materials and belongings constituted an eviction requiring a court order
• Whether the applicants were entitled to mandament van spolie or mandatory substitution of destroyed property
• Whether the destruction of the applicants' property breached their constitutional rights to dignity (section 10), privacy (section 14) and property (section 25(1))
• What constitutes appropriate relief under section 38 of the Constitution for violation of constitutional rights

1. The application for leave to appeal and condonation for late filing was granted. 2. The appeal was upheld with costs including costs of two counsel. 3. Paragraph 1 of the court a quo's order was set aside and replaced with: (a) a declaration that the destruction of the applicants' property listed in their schedule by the City on 1 February 2017 was unconstitutional and unlawful; (b) an order that the City pay each applicant R1,500 as compensation for destruction of property within 30 days; (c) costs against the respondents jointly and severally.

The binding legal principles established are: (1) Loose materials (cardboard, plastic sheeting, wooden pallets) used by homeless people do not constitute 'buildings or structures' within the meaning of the PIE Act, even on a generous interpretation. (2) Arbitrary confiscation and destruction of personal belongings of homeless people, even items of minimal commercial value, constitutes a breach of constitutional rights to property (section 25(1)), privacy (section 14(c)) and dignity (section 10). (3) Mandament van spolie cannot be extended to mandatory substitution of destroyed property - it is a possessory remedy that can only restore possession of existing property. (4) Under section 38 of the Constitution, courts may fashion innovative remedies beyond common law damages where necessary to effectively vindicate constitutional rights. (5) Where property has minimal commercial value but significant personal value to indigent claimants, and ordinary damages claims would be impractical and ineffective, standardized nominal compensation constitutes 'appropriate relief' to vindicate constitutional rights and deter future violations. (6) Claimants in constitutional matters are not necessarily bound to their original formulation of relief sought.

The Court made several important observations: (1) The Court declined to decide whether a public thoroughfare such as a traffic island constitutes 'vacant land' or whether habitually sleeping on it constitutes 'occupation' for PIE Act purposes, as it was unnecessary given the finding that no eviction occurred. (2) The Court noted approvingly that the court a quo had made an extensive order calling on the City to follow procedures during clean-up operations to safeguard personal belongings (requiring inventories, photographs, notice to possible claimants, designated storage, and reporting), describing the JMPD officials' conduct as 'a cynical and mean spirited act deserving of censure'. (3) The Court emphasized the particular vulnerability of homeless people who have meagre belongings that 'may appear ramshackle, but this is all we have, and this is what affords us the only bit of dignity which we enjoy'. (4) The Court noted the practical barriers facing indigent litigants in pursuing ordinary civil remedies - they cannot afford transport to court, would be hindered from daily work seeking employment or collecting recyclables, and would face costly, time-consuming litigation over property of trifling commercial value likely to result in nominal or no damages. (5) The amount of R1,500 per applicant (R40,500 total) was described as 'not a large sum of money' but appropriate in the circumstances given the declaratory order, costs award, and procedural safeguards ordered by the court a quo which would hopefully prevent recurrence.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It clarifies the limits of the PIE Act - temporary materials used by homeless people do not constitute 'structures' or 'buildings' and public thoroughfares are not 'land' for purposes of eviction protections. (2) It establishes that even where eviction protections do not apply, removal and destruction of belongings of homeless people can violate constitutional rights to dignity, privacy and property. (3) It demonstrates the courts' power to fashion innovative constitutional remedies under section 38 beyond traditional common law remedies. Where ordinary damages claims would be impractical and ineffective for indigent claimants with property of minimal commercial but significant personal value, courts may award standardized nominal compensation as 'appropriate relief' to vindicate constitutional rights. (4) It affirms constitutional protection for the dignity and possessions of society's most vulnerable members, even where those possessions have minimal market value. (5) It reflects the purposive approach to constitutional remedies required by Fose v Minister of Safety and Security, emphasizing effective vindication of rights over formalistic remedies.