The City of Johannesburg Metropolitan Municipality and Another v Seale and Another

The City of Johannesburg (the City) demolished informal shacks and shelters on Allandale Farm on 14 and 21 July 2023. The property, owned by the City and earmarked for low-cost housing development, had been subject to numerous land invasions. The City conducted preventative actions involving demolition of structures, removal of building materials and belongings, and destruction of shelters. Some 292 affected individuals (the respondents) launched an urgent application in the Gauteng High Court seeking a declaration that the evictions were unlawful and unconstitutional, restoration of possession, constitutional damages, and prohibitions against future unlawful evictions. The City defended its actions by relying on a 2017 court order granted by Sutherland J (the Sutherland J order), which it claimed authorized it to prevent unlawful invasions and occupation of the property. The City contended it had not evicted any persons but only acted against those in the process of invading the property.

• Whether the City's demolition of structures constituted unlawful evictions
• Whether the Sutherland J order authorized the City's conduct in demolishing structures and removing occupiers
• Whether an order against unidentified respondents can operate as a continuing authorization for evictions against persons not party to the original litigation
• Whether the high court erred in granting an order for payment of R1500 per shelter as part of restoration relief
• Whether there were reasonable prospects of success on appeal or compelling reasons to grant leave to appeal
• Whether the existence of two conflicting orders from the Supreme Court of Appeal justified reconsideration under s 17(2)(f) of the Superior Courts Act

1. The orders of the Supreme Court of Appeal dated 29 November 2023 issued pursuant to the applicants' application for leave to appeal against the order of the Gauteng High Court dated 25 August 2023 were set aside. 2. The applicants' application for leave to appeal against the high court order dated 25 August 2023 was dismissed. 3. The applicants (the City) were ordered to pay the costs of both the application for reconsideration and the application for leave to appeal.

The binding legal principles established are: (1) A court order authorizing prevention of unlawful land invasion does not authorize eviction of persons already in occupation of land, even if their occupation is unlawful. (2) An order granted against unidentified respondents does not operate as a continuing authorization applicable to all persons who might subsequently fall within the description of those respondents; such orders operate inter partes only. (3) Conduct involving demolition of established structures and removal of occupiers constitutes eviction, not mere prevention of invasion, and requires compliance with PIE and section 26(3) of the Constitution. (4) A prevention order cannot override or negate statutory and constitutional protections afforded to unlawful occupiers. (5) An order requiring a municipality to provide emergency temporary accommodation for evicted persons, or alternatively to pay a specified amount to enable restoration, forms part of restoration relief and not constitutional damages. (6) The existence of conflicting orders from a court, where one suggests application of an incorrect legal test, provides a jurisdictional basis for reconsideration under s 17(2)(f) of the Superior Courts Act on grounds that grave injustice might otherwise result.

The Court made several important obiter observations: (1) The Court noted the "remarkable" nature of the Sutherland J order, particularly that it was granted against unidentified persons and contained nonsensical prohibitions (paras 2.4 and 2.5) that could not apply to persons who had already invaded the property. (2) Goosen JA observed that whether a court might, under the exception in Firestone for clerical errors, issue a corrected substantive order if it inadvertently issues an order not reflecting its true intention "need not be decided" but suggested more would be required than the Registrar's explanation of a "typo". (3) The Court did not determine whether the Sutherland J order was itself unconstitutional, noting "we are not required to determine that the Sutherland J order is unconstitutional" but found it could not justify the City's conduct. (4) The judgment resonates with and cites approvingly the minority judgment of Van der Westhuizen J in Zulu regarding the unconstitutionality of orders authorizing evictions without PIE compliance, though the Court did not need to reach that conclusion. (5) The Court emphasized the historical context, noting that orders permitting removal without hearings "recall a time when the destitute and the landless were considered unworthy of a hearing before they were unceremoniously removed from the land where they had tried to make their homes." (6) The Court commented on the appropriateness of attorney-client scale costs against the City given the underlying issues and the City's conduct.

This case is significant in South African law for several reasons: (1) It clarifies the limited scope of court orders granted against unidentified respondents and confirms such orders cannot operate as general edicts against classes of persons not party to the original litigation. (2) It reinforces constitutional and statutory protections against unlawful evictions under PIE and section 26(3) of the Constitution, emphasizing that prevention orders cannot be used to circumvent eviction procedures. (3) It distinguishes between preventative measures against land invasion and eviction of established occupiers, holding that demolition of occupied structures constitutes eviction requiring compliance with PIE. (4) It addresses the functus officio doctrine and the limited circumstances in which courts may correct or vary their orders. (5) It clarifies that restoration orders requiring municipalities to provide emergency temporary accommodation or payment for same do not constitute constitutional damages. (6) It demonstrates the application of s 17(2)(f) of the Superior Courts Act regarding reconsideration of decisions where grave injustice or administration of justice concerns arise. The judgment is particularly important in the context of housing rights, land invasions, and municipalities' responses to informal settlements.