City of Cape Town v The South African Human Rights Commission

During the Covid-19 national state of disaster (March-April 2020 and continuing), a video went viral of City of Cape Town officials dragging a naked man (Mr Bulelani Qolani) from his dwelling in an informal settlement. Regulations under the Disaster Management Act 57 of 2002 severely curtailed evictions during this period. The SAHRC, Mr Qolani, and the Housing Assembly launched an urgent application in the Western Cape High Court seeking to prevent the City from evicting persons and demolishing structures (occupied or unoccupied) during the disaster without a court order (Part A - interim relief). Part B addressed the constitutionality of the City's conduct and its Anti-Land Invasion Unit (ALIU). The EFF and Occupiers of Erf 544, Mfuleni intervened, seeking return of building materials and personal possessions seized by ALIU, or alternatively equivalent materials and R2000 compensation per occupant. The High Court (Meer and Allie JJ) granted the interim relief on 25 August 2020. The City appealed with leave of the Supreme Court of Appeal. By the time of the SCA hearing, Part B had been heard over seven days by a full court, with judgment reserved.

• Whether interim orders are appealable when the final relief is still to be determined by the court a quo
• Whether the interests of justice require hearing an appeal against interim orders where no irreparable harm or grave injustice would occur
• Whether an award of monetary compensation (constitutional damages) can be granted in interim proceedings
• Whether the Plascon Evans rule applies to final relief sought in motion proceedings
• Whether costs should be awarded in interlocutory proceedings

The appeal against paragraphs 1-4 of the high court order was dismissed with costs, including costs of two counsel. The appeal against paragraph 5 succeeded. Paragraph 5 was set aside and replaced with an order dismissing the Occupiers' claim for return of building materials and personal possessions, or alternatively equivalent materials and R2000 compensation.

Interim orders are not appealable where: (1) they are not final in effect and remain subject to alteration by the court of first instance; (2) they do not definitively determine the rights of parties; (3) the same issues will be fully reconsidered in final proceedings; and (4) no irreparable harm or grave injustice will result from maintaining the interim order. The interests of justice generally require avoiding piecemeal adjudication and the risk of parallel conflicting judgments on the same issues. Constitutional damages cannot be awarded in interim proceedings where: (1) the relief is final in nature; (2) there has been no final determination of unconstitutionality; (3) the respondent denies key factual allegations; and (4) there is insufficient evidentiary detail regarding the nature of property seized and the identities of those affected. Where final relief is sought in motion proceedings, the Plascon Evans rule applies requiring the applicant to succeed on the respondent's version together with admitted facts, unless far-fetched or untenable.

The court observed that requiring the City to obtain court orders before conducting evictions during the national disaster could never amount to irreparable harm, as the City is legally obliged to act lawfully and constitutionally regardless. The court noted that the police respondents' failure to appeal the orders directing lawful conduct presumably reflected acknowledgment of their existing legal obligations. The court left open the possibility that after a final decision in Part B, if the City's conduct is found unlawful, the Occupiers may apply for appropriate relief regarding return of materials or compensation. The court stated there was no justification for allowing costs for three counsel.

This case clarifies the principles governing appealability of interim orders in South African law. It reinforces that interim orders are generally not appealable when they remain subject to reconsideration by the high court in final proceedings, unless grave injustice or irreparable harm would result. The judgment emphasizes the undesirability of piecemeal adjudication and the risk of parallel, potentially conflicting judgments. It also establishes important limitations on granting constitutional damages in interim proceedings - such relief is final in nature and requires proper evidentiary foundation and a final determination of unconstitutionality. The case demonstrates the application of the Plascon Evans rule to final relief in motion proceedings. In the context of eviction law during the Covid-19 disaster, it confirms the appropriateness of requiring judicial oversight of evictions, particularly of vulnerable informal settlement residents, while clarifying procedural requirements for claiming compensation for seized property.