City of Johannesburg Metropolitan Municipality and Another v Seale and Another

The City of Johannesburg owns the Allandale Farm property, which is earmarked for low-cost housing development. The property has been subject to repeated land invasions. In March 2017, the City obtained a default order from Sutherland J (the Sutherland J order) against unidentified persons intending to invade the property, interdicting them from doing so and authorising the City and law enforcement to assist in preventing unlawful invasion. On 14 and 21 July 2023, City officials and private security demolished informal shacks and shelters on the property, removed building materials and personal belongings, and destroyed shelters. Approximately 292 affected individuals (the Rabie Ridge Community) launched an urgent application in the Gauteng Division of the High Court, Pretoria, seeking orders declaring the evictions unlawful and unconstitutional, restoring possession, and interdicting further evictions without a court order. The City defended the application on the basis that the Sutherland J order authorised its preventative conduct and that the affected persons were not 'occupiers' but persons in the process of invading the property. On 23 August 2023, the High Court granted an order declaring the evictions unlawful and unconstitutional, requiring the City to restore the status quo or pay R1 500 per shack for emergency temporary accommodation, and interdicting future evictions without a court order. The City's application for leave to appeal to the Supreme Court of Appeal (SCA) was refused by the High Court on 25 August 2023. Its application to the SCA for leave to appeal was dismissed on 29 November 2023. However, two separate dismissal orders were issued on that date: the first stated the application was dismissed because the requirements for 'special leave' were not met; the second (issued later by the Registrar to correct a 'typo') stated the application was dismissed because there were no reasonable prospects of success and no compelling reasons to grant leave. The City applied for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013, contending that the two orders suggested a higher threshold had been applied and that the court was functus officio. The President of the SCA referred the matter for reconsideration.

• Whether the existence of two orders issued by the SCA on 29 November 2023 was sufficient to establish jurisdiction to reconsider the dismissal of leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013.
• Whether the Sutherland J order granted in March 2017 against unknown intending invaders authorised the City to demolish existing structures and remove persons from the property on 14 and 21 July 2023.
• Whether the City's conduct on 14 and 21 July 2023 constituted an unlawful eviction of occupiers in breach of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and s 26(3) of the Constitution.
• Whether the High Court's direction that the City pay R1 500 per shack was an award of constitutional damages not sought in the urgent relief, thereby constituting a compelling reason to grant leave to appeal.
• Whether there were reasonable prospects of success on appeal or any other compelling reason why leave to appeal should be granted.

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 High Court dated 25 August 2023, are set aside. 2. The applicants' application for leave to appeal against the order of the High Court dated 25 August 2023 is dismissed. 3. The applicants are to pay the costs of the application for reconsideration and the costs of the application for leave to appeal.

A municipality's conduct in demolishing informal structures and removing persons from municipal land constitutes an unlawful eviction if done without complying with PIE and the constitutional requirements under s 26(3), and cannot be justified by a prior court order that merely authorised lawful endeavours to prevent future unlawful invasion by unidentified persons. The existence of two inconsistent orders of the Supreme Court of Appeal dismissing an application for leave to appeal—one suggesting a higher 'special leave' threshold was applied and the other reflecting the correct threshold—is sufficient to establish jurisdiction for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013, because the application of a more stringent test than required meets the statutory requirement that a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute. An order directing a municipality to pay a monetary amount per shack as an alternative to the physical restoration of emergency temporary accommodation is part of the restorative relief and not an award of constitutional damages where the court expressly so characterises it and makes it contingent on the municipality's inability to restore possession itself.

The Court remarked, without deciding the issue, that the Sutherland J order was 'remarkable' in that it was granted in default against unidentified persons, and that whether such an order was competent in the form in which it was granted was not a matter that arose for determination in this case. The Court also cited dicta from Kayamandi Town Committee v Mkhwaso and Others to the effect that an order against unidentified respondents may have a generalised legislative effect rather than operating as a true court order inter partes. The Court further observed, without deciding, whether the exception in Firestone South Africa (Pty) Ltd v Genticuro AG allowing correction of clerical errors might extend to permitting a court to correct an inadvertently issued substantive order that does not reflect its true intention. The Court also made observations regarding a schedule attached to the founding papers listing members of the Rabie Ridge Community and their lost property, noting that this schedule would be relevant only to the question of constitutional damages to be considered in future proceedings, and that the reference to 'per shack' in the High Court's order did not entitle persons who might have owned multiple shacks to multiples of the R1 500 amount. Additionally, the Court noted that the minority judgment in Zulu and Others v eThekwini Municipality and Others reasoned that similar interim authorisation orders were unlawful and unconstitutional for negating rights under PIE, though the majority in that case did not reach that issue.

This case reaffirms that municipalities cannot rely on broad pre-emptive court orders obtained against unidentified 'intending invaders' to bypass the strict procedural and substantive protections afforded to occupiers under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and s 26(3) of the Constitution. It underscores that demolishing established shelters and removing persons from land constitutes an eviction requiring judicial oversight, fair procedure, and just and equitable consideration of all relevant circumstances. The judgment also clarifies the procedural mechanism of reconsideration under s 17(2)(f) of the Superior Courts Act, holding that the issuance of two inconsistent dismissal orders suggesting a misapplied threshold test is sufficient to establish jurisdiction for reconsideration to prevent a grave failure of justice.