Mtshingana and Another v City of Cape Town (12888/2020) [2020] ZAWCHC 156 (13 November 2020)

Mtshingana and Another v City of Cape Town (12888/2020) [2020] ZAWCHC 156 (13 November 2020)

The court found that although the applicants were not in physical possession of their home for three months prior to demolition, the respondent's conduct in demolishing the structure without notice or court order constituted an unlawful deprivation of the applicants' rights to housing and dignity under the Constitution. The mandament van spolie, while primarily a possessory remedy, is also intended to preserve order and prevent self-help, and is available even to unlawful occupiers. However, the remedy cannot be stretched to require restoration using substitute materials. Given the constitutional breach, the court exercised its discretion to grant appropriate relief, restoring the...

Citation
[2020] ZAWCHC 156
Parties
Applicant: Asanda Mtshingana; Applicant: B D; Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 November 2020
Case Number
12888/2020
Procedural Posture
Urgent Application / Final Relief Application
Outcome
Application granted in part; applicants restored to temporary possession and occupation of their home and awarded reimbursement for rebuilding costs.
Judges
E D Wille
Legal Topics
Mandament Van Spolie, Right to Housing, Unlawful Eviction, Restorative Remedy, Human Dignity
Land and Property Constitutional Law Mandament Van Spolie Right to Housing Unlawful Eviction Restorative Remedy Human Dignity

Case Brief

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Parties

Asanda Mtshingana

Applicant

B D

Applicant

City of Cape Town

Respondent

Procedural Posture

Urgent Application / Final Relief Application

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of possession of their home by the respondent.
  2. 2 Whether the mandament van spolie is available as a remedy to restore possession in these circumstances.
  3. 3 Whether constitutional rights to housing and dignity were infringed by the respondent's conduct.

Ratio Decidendi

The court found that although the applicants were not in physical possession of their home for three months prior to demolition, the respondent's conduct in demolishing the structure without notice or court order constituted an unlawful deprivation of the applicants' rights to housing and dignity under the Constitution. The mandament van spolie, while primarily a possessory remedy, is also intended to preserve order and prevent self-help, and is available even to unlawful occupiers. However, the remedy cannot be stretched to require restoration using substitute materials. Given the constitutional breach, the court exercised its discretion to grant appropriate relief, restoring the...

Court Disposition

Application granted in part; applicants restored to temporary possession and occupation of their home and awarded reimbursement for rebuilding costs.

Orders

  • The applicants are restored to temporary possession and occupation of their home (structure) situated at [...] Street, Sports Field, Witsand.
  • The applicants are permitted to retake temporary occupation and possession of their home by no later than 13 January 2021.