Fischer and Another v Persons whose identities are to the apllicants unkown and who have attempted or are threatening to unlawfully occupy Erf 150 (Remaining extent) Philippi In re: Ramahlele and Others v Fisher and Another (297/2014) [2014] ZAWCHC 32; 2014 (3) SA 291 (WCC); 2014 (7) BCLR 838 (WCC); [2014] 3 All SA 365 (WCC) (13 March 2014)

Fischer and Another v Persons whose identities are to the apllicants unkown and who have attempted or are threatening to unlawfully occupy Erf 150 (Remaining extent) Philippi In re: Ramahlele and Others v Fisher and Another (297/2014) [2014] ZAWCHC 32; 2014 (3) SA 291 (WCC); 2014 (7) BCLR 838 (WCC); [2014] 3 All SA 365 (WCC) (13 March 2014)

The court held that the City of Cape Town's demolition of informal structures on private land without a court order was unconstitutional and unlawful. The City's reliance on the distinction between 'homes' and 'structures' was rejected; the relevant question was whether the structures were occupied or intended for occupation, not whether they qualified as homes. The court found that PIE and section 26(3) of the Constitution afford procedural protection to all occupiers, including those who have recently erected structures with the intention to reside. The City failed to observe the due process required by PIE, depriving the occupiers of their right to be heard before eviction or...

Citation
[2014] ZAWCHC 32
Parties
Applicant: Iris Arillda Fischer; Applicant: City of Cape Town; Respondent: Persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy Erf 150 (Remaining extent), Philippi; Appellant: Boitumelo Ramahlele and forty-six applicants listed in Annexure 'A'
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 March 2014
Case Number
297/2014
Procedural Posture
Urgent Application / Return Date of Rule Nisi and Counter Application for Declaratory and Interdictory Relief
Outcome
Declaratory and interdictory relief granted in favour of the occupiers; the City's conduct declared unconstitutional and unlawful; City ordered to provide temporary habitable dwellings; costs to be borne by each party.
Judges
Gamble
Legal Topics
Prevention of Illegal Eviction Act, Section 26 Right to Housing, Municipal Powers, Spoliation, Urgent Interdict, Judicial Review of Eviction
Land and Property Constitutional Law Civil Procedure Prevention of Illegal Eviction Act Section 26 Right to Housing Municipal Powers Spoliation Urgent Interdict +1 more

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Parties

Iris Arillda Fischer

Applicant

City of Cape Town

Applicant

Persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy Erf 150 (Remaining extent), Philippi

Respondent

Boitumelo Ramahlele and forty-six applicants listed in Annexure 'A'

Appellant

Procedural Posture

Urgent Application / Return Date of Rule Nisi and Counter Application for Declaratory and Interdictory Relief

Legal Issues

  1. 1 Whether the City of Cape Town acted lawfully in demolishing informal structures on private land without a court order.
  2. 2 Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applies to the demolition of unoccupied or newly erected structures.
  3. 3 Whether the procedural rights of occupiers under PIE and section 26(3) of the Constitution were infringed.

Ratio Decidendi

The court held that the City of Cape Town's demolition of informal structures on private land without a court order was unconstitutional and unlawful. The City's reliance on the distinction between 'homes' and 'structures' was rejected; the relevant question was whether the structures were occupied or intended for occupation, not whether they qualified as homes. The court found that PIE and section 26(3) of the Constitution afford procedural protection to all occupiers, including those who have recently erected structures with the intention to reside. The City failed to observe the due process required by PIE, depriving the occupiers of their right to be heard before eviction or...

Court Disposition

Declaratory and interdictory relief granted in favour of the occupiers; the City's conduct declared unconstitutional and unlawful; City ordered to provide temporary habitable dwellings; costs to be borne by each party.

Orders

  • The main application is postponed for hearing to Thursday 22 May 2014.
  • Costs associated with the main application are to stand over for later determination.