Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another (6778/2017) [2017] ZAGPJHC 122; [2017] 3 All SA 276 (GJ) (30 March 2017)

Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another (6778/2017) [2017] ZAGPJHC 122; [2017] 3 All SA 276 (GJ) (30 March 2017)

The application for the return or substitution of property failed because the items were not adequately described, had been irretrievably discarded, and South African law does not provide for substitution in spoliation claims. The application was not urgent due to the delay in bringing it. The applicants' claim to...

Source-derived case information.

Citation
[2017] ZAGPJHC 122
Parties
Applicant: Steven Ngomane and 27 Others; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: Zwelibanzi Velaphi Nyanda N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 March 2017
Case Number
6778/2017
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application dismissed; rule nisi and interim interdict issued regulating future municipal clean-up exercises affecting homeless persons' belongings.
Judges
Roland Sutherland
Legal Topics
Mandament Van Spolie, Right to Dignity, Municipal Health by Laws, Unlawful Occupation, Prevention of Illegal Eviction Act, Urgent Interdict
Constitutional Law Civil Procedure Land and Property Mandament Van Spolie Right to Dignity Municipal Health by Laws Unlawful Occupation Prevention of Illegal Eviction Act +1 more

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Summary, issues, holding and outcome

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Parties

Steven Ngomane and 27 Others

Applicant

City of Johannesburg Metropolitan Municipality

Respondent

Zwelibanzi Velaphi Nyanda N.O.

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to the return or substitution of personal property removed by municipal officials.
  2. 2 Whether the applicants have a right to occupy a public traffic island as their home under section 26 of the Constitution and PIE.
  3. 3 Whether the conduct of the respondents violated the applicants' constitutional rights to dignity.

Ratio Decidendi

The application for the return or substitution of property failed because the items were not adequately described, had been irretrievably discarded, and South African law does not provide for substitution in spoliation claims. The application was not urgent due to the delay in bringing it. The applicants' claim to occupy a public traffic island as a home was rejected, as public thoroughfares cannot be lawfully occupied and are not protected under section 26 of the Constitution or PIE. The court found that the conduct of municipal officials in indiscriminately discarding personal belongings was callous and violated the dignity of the homeless applicants. Accordingly, while the main...

Court Disposition

Application dismissed; rule nisi and interim interdict issued regulating future municipal clean-up exercises affecting homeless persons' belongings.

Orders

  • The application is dismissed.
  • A rule nisi is issued calling upon the respondents to show cause on 26 May 2017 why an order regulating the removal and retention of personal belongings during municipal clean-up exercises should not be made final.