City of Tshwane Metropolitan Municipality and Another v Summer Season Trading 63 (Pty) Ltd

The dispute concerns the Remaining Extent of Portion 34 of the farm Kameelzynkraal 547 JR, Bronkhorstspruit. In 2003, the then-owner invited people to settle on the vacant property. Despite an interdict and confirmation order granted by the High Court in 2003–2004, the municipality (later incorporated into the City of Tshwane) allowed people to settle and the informal settlement, known as Kanana Village, grew. Summer Season Trading 63 (Pty) Ltd purchased the property in October 2006 and attempted to negotiate relocation. In December 2007, the municipality issued a notice of expropriation, which was set aside by consent in November 2009. In May 2011, Summer Season instituted eviction proceedings. On 30 April 2013, the High Court granted a final eviction order against the occupiers and ordered the City to relocate them and provide alternative accommodation. Leave to appeal was refused by the Supreme Court of Appeal and the Constitutional Court. In January 2015, the City filed a report stating the property was unsuitable for permanent development but indicated an intention to expropriate it for temporary accommodation. In March 2015, the City served a notice of expropriation under the Expropriation Act 63 of 1975 read with s 79(24)(a)(i) of the Local Government Ordinance 1939. Summer Season reviewed this. In October 2018, the City purported to withdraw the 2015 notice and issued a new 2018 expropriation notice. In September 2023, the High Court (Mooki AJ) heard the review and eviction applications together. On 31 October 2023, the High Court set aside the 2015 expropriation notice, declared the 2018 notice invalid, dismissed the occupiers’ counterclaim, and enforced the eviction order, directing relocation by 30 October 2024. Both the City and the occupiers appealed, with the City later conceding during argument that both expropriation notices were procedurally invalid.

• Whether the 2018 expropriation notice was a valid and lawful exercise of the City’s power to expropriate land
• Whether the City had the substantive power to expropriate under s 79(24)(a)(i) of the Ordinance read with s 5 of the Expropriation Act, or whether s 9(3) of the Housing Act was the correct statutory source
• Whether expropriation is permitted despite a final, extant eviction order requiring relocation of the unlawful occupiers
• Whether the withdrawal of the 2015 expropriation notice complied with s 23(1) of the Expropriation Act
• Whether a just and equitable remedy under s 172(1)(b) of the Constitution or PAJA is available to permit the occupiers to remain on the property in contravention of the eviction order
• Whether the High Court correctly enforced the 2013 eviction order and its relocation directions

The appeal was dismissed, save for the amendment of the High Court order. Paragraphs 7 and 8 of the High Court order were deleted. Paragraph 9 was substituted to order the City to complete the relocation of the occupiers within one year of the date of the judgment. The City was ordered to pay the costs of the appeal.

A local authority’s power to expropriate land for housing or settlement purposes must be sourced in enabling legislation such as s 9(3) of the Housing Act 107 of 1997, and not merely in the general acquisition provision of the Local Government Ordinance 1939 read with the procedural provisions of the Expropriation Act 63 of 1975. An expropriation for a purpose other than that authorised by law—specifically to forestall compliance with a final eviction order—is unlawful. A withdrawal of an expropriation notice after the expiration of three months from the date of expropriation, without the written consent of the owner as required by s 23(1) of the Expropriation Act, is a nullity. A court’s power under s 172(1)(b) of the Constitution does not extend to granting relief that would render a final eviction order nugatory or permit unlawful occupiers to remain on property contrary to such an order.

The Court made several non-binding observations: (a) The City, as an organ of state, displayed a troubling disregard for judicial authority by failing to comply with the 2013 eviction and relocation orders, and its conduct risked breeding contempt for the law, echoing Justice Brandeis’s remarks in Olmstead v United States. (b) While homelessness is a serious problem, land invasion should always be discouraged, and s 26 of the Constitution does not entitle unlawful occupiers to choose where they live or oblige owners to provide indefinite occupation. (c) Owners bear the primary duty to safeguard their property and take reasonable steps to prevent and remedy unlawful occupation, and Summer Season had not been idle in asserting its rights. (d) The decision in Staufen Investment was distinguishable on its facts because the eviction order there was granted by consent and expressly provided that it would fall away if expropriation succeeded, unlike the present case where the eviction order was final and unconditional.

The judgment is significant for three principal reasons. First, it clarifies that s 5 of the Expropriation Act 63 of 1975 is purely procedural and does not confer substantive power on a municipality to expropriate land; the substantive power must be sourced in enabling legislation such as the Housing Act 107 of 1997. Second, it confirms that expropriation cannot lawfully be employed to circumvent or frustrate a final court order, particularly an eviction order requiring relocation. Third, it reaffirms the supremacy of court orders and the rule of law, holding that s 172(1)(b) of the Constitution does not permit a court to fashion relief that renders a final eviction order nugatory by allowing unlawful occupiers to remain on the property indefinitely.