THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case : 303/2006
REPORTABLE

In the appeal between:

TSWELOPELE NON-PROFIT ORGANISATION
First
appellant
AND 23 OTHERS

Second and further appellants

and

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

First respondent
MINISTER OF HOME AFFAIRS

Second respondent
MINISTER OF SAFETY AND SECURITY
Third respondent

Before:
Scott JA, Cameron JA, Nugent JA, Maya JA,
Snyders AJA
Heard:

Friday 11 May 2007
Judgment:
Wednesday 30 May 2007

Unlawful eviction – constitutional remedies – development of
suitable remedy – unnecessary to develop mandament van spolie
– court ordering governmental agencies that unlawfully destroyed
shacks to construct habitable temporary shelters for those affected

Neutral citation: Tswelopele Non-Profit Organisation v City of
Tshwane Metropolitan Municipality [2007] SCA 70 (RSA)

CAMERON JA:

[1] In the early hours of Friday morning 31 March 2006, about one
hundred persons were evicted from their homes on a vacant
piece of land in the Pretoria suburb of Garsfontein.  Officials
from three governmental agencies in a joint operation expelled
them from the rudimentary shelters they had erected.  The
pieces of plastic and other waste materials they had salvaged
from surrounding building sites to construct their homes were
put to the torch.  Many of their belongings were destroyed.
Sixteen immigrants without South African documentation were
arrested and later deported.
[2] The operation was carried out by officials from the nature
conservation division of the Tshwane metropolitan municipality
(Tshwane) (first respondent), the immigration control office of
the Department of Home Affairs (Home Affairs) (second
respondent), and the South African Police Services (SAPS)
(third
respondent),
accompanied
by
members
of
the
Garsfontein community policing forum.1  Even though the
Constitution provides that ‘No one may be evicted from their
home, or have their home demolished, without an order of court

1 Section 18(1) of the South African Police Service Act 68 of 1995 requires the SAPS to ‘liaise

made after considering all the relevant circumstances’,2 and
even though the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) decrees
that ‘No person may evict an unlawful occupier except on the
authority of an order of a competent court’,3 there was no court
order.  The eviction violated the law and the Constitution.
[3] This led the first appellant – a registered non-profit
organisation4 committed to the upliftment of homeless and
destitute people in the Moreleta Park area (Tswelopele
(‘Progress’)) – to bring an urgent application ten days later in
the Pretoria High Court.  Twenty three named residents who
had been evicted (the occupiers) joined the proceedings as
applicants.  In the founding affidavit, Tswelopele’s treasurer, Mr
Colin Wilfred Dredge, a chartered accountant living in Moreleta
Park (which borders on Garsfontein), described what he saw
after receiving a call from distressed occupiers.  Dwellings in
which they had been living peaceably for at least eighteen
months had been destroyed.  In the wake of the police,
Tshwane employees were burning shacks and cutting down

with the community through community police forums’ established at police stations which are
‘broadly representative of the local community’ (s 19(1)).
2 Bill of Rights s 26(3).
3 PIE s 8(1).  Section 8(3) provides that contravention of ss (1) is an offence on conviction of
which the offender is liable to a fine or imprisonment not exceeding two years, or both.
4 Registered under the Nonprofit Organisations Act 71 of 1997.

trees.  When challenged, officials from all three government
agencies refused to show him authorisation under a court
order.  Indeed, he says, he was threatened with arrest for
obstructing the police in the execution of their duties.
[4] In the face of this, Tswelopele sought an order directing the
three respondents to restore the possession of the occupiers
before all else (ante omnia), and in the interim to provide them
with temporary shelter.  The notice of motion also sought costs
and further or alternative relief.  The founding affidavit couched
its claim for relief under the common law mandament van
spolie: but it also expressly invoked the occupiers’ procedural
protections under PIE and their rights under sections 255 and
26(3)6 of the Bill of Rights.
[5] In answer, Tshwane protested that its officials were there
merely ‘to eradicate alien vegetation’ (even while admitting that
its nature conservation division was not responsible for the
site), and that they did so believing that the police ‘were acting
lawfully’.  Home Affairs said it participated solely ‘to identify
non-documented illegal immigrants’.  The Garsfontein police

5 Constitution s 25(1) provides that ‘No one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary deprivation of property’.
6 Constitution s 26(3): ‘No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the relevant circumstances.
No legislation may permit arbitrary evictions.’

station acting commander, senior superintendent John Tinyiko
Masia – who admitted planning the action with the other
governmental agencies – described it as but a ‘crime fighting
operation’.  He and Home Affairs (though contradicted in this by
Tshwane’s deponent) denied that any dwellings were
destroyed or dwellers evicted.  Instead, they said, the occupiers
left ‘voluntarily’, leaving their waste materials behind to be
cleared.
[6] Jordaan J dismissed the application.  He held, following
Rikhotso v Northcliff Ceramics7 (which concluded that the
mandament van spolie is a remedy for the restoration of
possession, not for the making of reparation), that because the
officials had destroyed the materials used in the construction of
the dwellings, the occupiers could not be restored to the
possession of their homes.  The court could therefore not grant
the relief they sought.
[7] But Jordaan J declined to order costs against the applicants,
not only because they were impecunious, but because the
governmental agencies had acted unlawfully and had not been
frank with the court.  Even applying the respondent-friendly test

7 1997 (1) SA 526 (W), where Nugent J held that ‘a spoliation order cannot be granted if the
property in issue has ceased to exist’ (535A-B).

for determining factual disputes on opposing affidavits, he
rejected the officials’ account of what had happened as
‘ostensibly improbable and untruthful’.
[8] When Jordaan J granted the occupiers leave to appeal, these
conflicts portended acrimonious appellate proceedings.  But
that was not to be.  Before this Court, all three respondents
significantly adjusted their approach.  Mr Bruinders for
Tshwane acknowledged that the city had participated in an
unlawful eviction.  And at the outset of his argument Mr Tokota
for Home Affairs and the SAPS recorded an unambiguous
apology for what had occurred, which he described as
‘unlawful’ and ‘unacceptable’.  This administers some belated
but not insignificant balm to the injury inflicted, since in the
place of unsustainable denials and evasion it substitutes a
willingness to accept constitutional accountability.  And it
enables this Court to focus on the principal issue – which is
what relief, if any, the occupiers were entitled to obtain.
[9] But first it is necessary to consider the respondents’ contention
that the occupiers’ appeal has become perempted.

Has the appeal become perempted?

[10] Peremption of the right to challenge a judicial decision
occurs when the losing litigant acquiesces in an adverse
judgment.  But before this can happen, the court must be
satisfied that the loser has acquiesced unequivocally in the
judgment.8  The losing party’s conduct must ‘point indubitably
and necessarily to the conclusion that he does not intend to
attack the judgment’: so the conduct relied on must be
‘unequivocal and must be inconsistent with any intention to
appeal’ (Dabner v South African Railways and Harbours 1920
AD 583 at 594, per Innes CJ).
[11] The respondents based their contention on these facts:
(a) After the unlawful eviction, the occupiers returned to the site
(the respondents had after all denied that they had been
evicted).

But
this
merely
triggered
a
second
joint
SAPS/Tshwane operation four weeks later, in which the
occupiers’ shacks were again demolished.
(b) Tswelopele again went to court.  It brought a second urgent
application – joined this time by one named occupier, Ms Seke
Esther Malefo, who was also an applicant in these

8 In Hlatshwayo v Mare and Deas 1912 AD 232 at 241 [some editions, and the reprints since
1921, have the judgment at page 242 and the citation at page 253], which concerned not an
appeal, but the losing party’s right to challenge a judgment granted by default, Solomon J
stated that it was of ‘the utmost importance’ that the court ‘should be clearly satisfied that
there has been acquiescence in a judgment before it decides to debar any party’ from
challenging a judgment.

proceedings, and further unnamed occupiers, who were cited
collectively as the third applicant.
(c) On the afternoon of 19 May 2006, Bertelsmann J heard oral
evidence.  After Tswelopele had led some evidence, which was
cross-examined on behalf of the SAPS, the matter stood down.
The parties then entered into a settlement agreement, which
Bertelsmann J made an order of court.
(d) The order provided that ‘the occupants as at 20h00 on 19
May 2006 of a vacant piece of land on the corner of De Ville
Bois Mareuil and Garsfontein Roads, Moreleta Park’ were to be
‘moved to be accommodated at the Garsfontein Police Station’
and that the officers responsible for the police station ‘will take
an inventory of all those people’.  On Monday 22 May 2006,
Tshwane was to ‘move the people to a homeless people
shelter’ in Struben Street, Pretoria and to ‘register them on their
housing subsidy programme’.  Pending finalisation of the
housing subsidy application, the occupiers would without
charge ‘be accommodated in the homeless people shelter’.  In
the meantime, the SAPS undertook ‘not to harass and/or
victimise [them] in any manner whatsoever, during the period of
accommodation’.  The respondents were ordered to pay the
applicants’ costs.

(e) Later, fifty named persons with South African identity
numbers were accommodated in the Struben Street shelter.  Of
these, fifteen survived screening and were enrolled to receive
assistance from Tshwane’s housing subsidy programme.
[12] On these facts the contention that Tswelopele and the
occupiers abandoned the appeal cannot succeed.  This is
because there is a misfit between the parties to the two
proceedings, and the relief sought in each does not match.
[13] First, the list of verified applicants in the present proceedings
does not coincide fully with those named or identified at any
stage of the proceedings before Bertelsmann J.  Of the twenty
three individual applicants in this matter, only one was a named
applicant in the second proceedings, and at most nine are
listed amongst those accommodated in the Struben Street
shelter.  And we were informed from the Bar that only five were
ultimately successful in their applications for housing subsidies.
At the very least, it cannot be said that those of the present
appellants who did not associate themselves with or benefit
from the order in the second proceedings abandoned their right
to appeal.
[14] But, second, even those who did identify with or benefit from
the second proceedings did not in my view abandon their

challenge to the outcome of the first.  The relief sought and
obtained before Bertelsmann J was temporary shelter,
assistance with housing subsidy applications, and an
undertaking against harassment.  In the first proceedings,
though the appellants also sought interim temporary shelter,
the core of the relief Jordaan J refused was restoration of
possession – that is, the reconstruction of the destroyed
dwellings.  Accepting the former did not entail abandoning the
claim to the latter.  Far from acquiescing in the judgment of
Jordaan J, it is plain that Tswelopele and the individual
applicants continued to challenge its refusal to grant their
central claim.  The appeal has therefore not become
perempted.

Remedy
[15] That the wanton destruction of the occupiers’ dwellings
violated the Constitution was not disputed.  What must be
owned is how far-reaching and damaging the breach was.  The
governmental agencies violated not merely the fundamental
warrant against unauthorised eviction,9 but (given the implicit
menace with which the eviction was carried out) the occupiers’

right to personal security10 and their right to privacy.11  It
infringed not only the occupiers’ property rights in their
materials and belongings,12 but trampled on their feelings and
affronted their social standing.  For to be hounded unheralded
from the privacy and shelter of one’s home, even in the most
reduced circumstances, is a painful and humiliating indignity.
[16] And it is not for nothing that the constitutional entrenchment
of the right to dignity emphasises that ‘everyone’ has inherent
dignity, which must be respected and protected.13  Historically,
police actions against the most vulnerable in this country had a
distinctive racial trajectory: white police abusing blacks.  The
racial element may have disappeared, but what has not
changed is the exposure of the most vulnerable in society to
police power and their vulnerability to its abuse.  Reading
comparable case reports from the decades preceding these
events,14 it is impossible not to endorse appellant’s counsel’s

9 Bill of Rights s 26(3).
10 Bill of Rights s 12(1): ‘Everyone has the right to freedom and security of the person, which
includes the right – … (b) to be free from all forms of violence from either public or private
sources’.
11 Bill of Rights s 14: ‘Everyone has the right to privacy, which includes the right not to have –
(a) their person or their home searched; (b) their property searched; (c) their possessions
seized; …’
12 Bill of Rights s 25(1): ‘No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.’
13 Bill of Rights s 10: ‘Everyone has inherent dignity and the right to have their dignity
respected and protected.’
14 Including Fredericks and another v Stellenbosch Divisional Council 1977 (3) SA 113 (C),
George Municipality v Vena 1989 (2) SA 263 (A) (substantially affirming 1987 (4) SA 29 (C)),
and Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A).

submission that in its lack of respect for the poor and the
vulnerable, and in the official hubris displayed, what happened
displays a repetition of the worst of the pre-constitutional past.
[17] This places intense focus on the question of remedy, for
though the Constitution speaks through its norms and
principles, it acts through the relief granted under it.  And if the
Constitution is to be more than merely rhetoric, cases such as
this demand an effective remedy,15 since (in the oft-cited words
of Ackermann J in Fose v Minister of Safety and Security16)
‘without effective remedies for breach, the values underlying
and the right entrenched in the Constitution cannot properly be
upheld or enhanced’:
‘Particularly in a country where so few have the means to enforce their
rights through the courts, it is essential that on those occasions when the
legal process does establish that an infringement of an entrenched right
has occurred, it be effectively vindicated.’
[18] The claimant in Fose was held not to be entitled to a
specially crafted constitutional remedy for police assaults
(namely punitive damages), since the ordinary remedies for his
injury (the usual measure of damages) sufficed.  This case is

15 Bill of Rights s 38: ‘Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court
may grant appropriate relief, including a declaration of rights. …’  Section 7(4) of the interim
Constitution also afforded a right to ‘appropriate relief’.

different.  Though the respondents urged us to find that the
occupiers should be left to their ordinary remedies, it is evident
that none of them suffices:
(a) Damages:  Jordaan J rightly observed that ‘at least some of
the respondents are liable in an action for damages’.  But there
are two problems with this.  The first is:  damages for what?
The scraps of building and waste materials the occupiers used
to construct their dwellings have a minimal market value, and
the damages they may recover, even for their destroyed
domestic effects, will probably be pitifully small.  Some may be
able to sue for iniuria (for the invasion of their privacy and the
indignity suffered in the eviction). and claim more substantial
damages, but only after trial proceedings that could stretch long
years into the future – which is the second problem.
(b)   Criminal charges:  Jordaan J also noted that the
respondents’ conduct contravened s 8(1) of PIE,17 which is a
criminal offence.  A prosecution could have both instructional
and inhibitory effect, but it would provide no material benefit to
the occupiers.  And will it happen?  Tswelopele on a previous
occasion of harassment (by a private security company) took

16 1997 (3) SA 786 (CC) para 69.
17 Set out in para 2 above.

the trouble to lodge criminal charges at the Garsfontein police
station.  Although eight months had passed when the
respondents’
affidavits
were
filed,
the
acting
station
commander had no knowledge of the matter or of its progress.
This is no good portent.
(c) Interdict:  Tswelopele conceded that a suitably crafted
interdict could put a stop to what could be argued to be a
pattern of unlawful conduct, particularly by the Garsfontein
community police forum; but an interdict is future-directed: it
does not meet the occupiers’ salvage claim, which would
address their present wants by remedying a past injustice.
(d) Joining the Grootboom emergency relief and housing
queue:  In Government of the Republic of South Africa v
Grootboom,18  the Constitutional Court held that the
Constitution requires the State to devise and implement within
its available resources a comprehensive and co-ordinated
program progressively to realise the right of access to
adequate housing in s 26(2) of the Bill of Rights – and that the
program must include reasonable measures ‘to provide relief
for people who have no access to land, no roof over their
heads, and who are living in intolerable conditions or crisis

situations’.  The respondents contended that we should issue
an order – such as that Bertelsmann J issued – that embodies
this entitlement.  Those occupiers entitled to emergency relief
(or ‘Grootboom relief’) and thereafter to a housing subsidy will
no doubt be grateful for the activation of this aid.  But
countrywide the need is enormous; and the queues are long;
and it was common cause during argument that unlawful
demolition of one’s home gives no claim to priority.  The
occupiers want relief in relation to their destroyed shelters now,
as well as the promise of further aid in due course.
[19] As counsel for the appellants pointed out, effective relief
must be speedy, and it must address the consequences of the
breach of their rights.  The only way to achieve these aims is to
vindicate the occupiers’ salvage claim, and to require the
respondents to re-create their shelters.  The remaining
question is the best route to that result.

Mandament van spolie?
[20] Though the appellants did not abandon their contention that
the mandament van spolie should be constitutionally adapted
to afford them this relief, their primary submission was that a

18 2001 (1) SA 46 (CC) para 99.

broader remedy should be developed under the Constitution.
In this case, their approach to the common law is correct.  The
Constitution preserves the common law,19 but requires the
courts to synchronise it with the Bill of Rights.20  This entails
that common law provisions at odds with the Constitution must
either be developed21 or put at nought;22 but it does not mean
that every common law mechanism, institution or doctrine
needs constitutional overhaul; nor does it mean that where a
remedy for a constitutional infraction is required, a common law
figure with an analogous operation must necessarily be seized
upon for its development.  On the contrary: it may sometimes
be best to leave a common law institution untouched, and to
craft a new constitutional remedy entirely.
[21] It is true that the mandament offered the occupiers an
alluring template for the relief they crave.  The remedy

19 Bill of Rights s 39(3): ‘The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary law or legislation, to
the extent that they are consistent with the Bill.’
20 Bill of Rights s 8(3)(a) (‘When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2) [which makes such a provision binding on natural and
juristic persons ‘if, and to the extent that, it is applicable, taking into account the nature of the
right and the nature of the duty imposed by the right’] a court – (a) in order to give effect to a
right in the Bill, must apply, or if necessary develop, the common law to the extent that
legislation does not give effect to that right’); and s 39(2) (‘When interpreting any legislation,
and when developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights’).
21 As with the common law definition of marriage: Fourie v Minister of Home Affairs 2005 (3)
SA 429 (SCA) and Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).
22 Constitution Chapter 1, ‘Founding Provisions’, s 2: ‘This Constitution is the supreme law of
the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled.’

originated in the canon law,23 and found its way thence into
Roman Dutch law and modern South African law.24  Under it,
anyone illicitly deprived of property is entitled to be restored to
possession before anything else is debated or decided
(spoliatus ante omnia restituendus est).  Even an unlawful
possessor – a fraud, a thief or a robber – is entitled to the
mandament’s protection.  The principle is that illicit deprivation
must be remedied before the courts will decide competing
claims to the object or property.
[22] The mandament’s obvious rule of law dimension gave rise to
a debate between academic experts as to whether its primary
rationale was to protect possession, or to preserve order (and
thus to discourage self-help).  The practical focus of the debate
was the question that presented itself here: is the mandament
available when the spoliator (or someone else) has destroyed
the property sought to be restored?  Some pre-constitutional
authority supported using the mandament to make the spoliator
reconstruct what he had destroyed.  In Jones v Claremont
Municipality,25 the court ordered a public authority to restore (ie,

23 DG Kleyn, ‘Possession’ in Reinhard Zimmermann and Daniel Visser (eds), Southern Cross
– Civil Law and Common Law in South Africa (1996) pages 835-846.
24 CG van der Merwe, ‘Possession’ in WA Joubert, The Law of South Africa vol 27 (first
reissue 2002), paras 263-277.
25 (1908) 25 SC 651.

reconstruct) a fence it had illegally destroyed: Buchanan ACJ
regarded the municipality’s conduct as ‘very high-handed’, and
said that ‘by ordering them to restore this fence I wish to mark
my sense of the impropriety of a public body taking the law into
its own hands’.26  And in Fredericks and another v Stellenbosch
Divisional Council,27 where  the council demolished squatters’
corrugated-iron homes ‘in flagrant contempt of the law’,28
Diemont J issued an order requiring it to ‘re-erect’ the
applicants’ homes immediately.29  This entailed ‘recreating
shelters of approximately similar size and efficacy’.30  He
considered that the order ‘should create no practical problems’:
‘If the original sheets of corrugated iron cannot be found or if they have
been so damaged by the bulldozer that they cannot now be used there is
no reason why other sheets of iron of similar size and quality should not
be used.’ 31

26 (1908) 25 SC 651at 654-655.
27 1977 (3) SA 113 (C).
28 1977 (3) SA 113 (C) 116D-E.
29 1977 (3) SA 113 (C) 115B-C.
30 1977 (3) SA 113 (C) 118A.
31 1977 (3) SA 113 (C) 117H.

[23] But the heavy,32 albeit not universal,33 preponderance of
academic commentators disfavoured the way the mandament
was extended in Fredericks, and in Rikhotso v Northcliff
Ceramics (Pty) Ltd34 Nugent J held that a spoliation order
cannot be granted if the property at issue has ceased to exist:
the mandament has been received into our law as a
possessory remedy, and not as a general remedy against
unlawfulness.  He observed that the issue of the mandament is
a preliminary and provisional order, so that the assumption that
underlies it is that the property in fact exists and may be
awarded in due course to the properly entitled party.  Since
possession can not be restored by substitution, the mandament
could not be granted.35  Nugent J concluded:

32 The debate is summarised and the authorities analysed in MJ de Waal Die Moontlikheid
van Besitsherstel as Wesenselement vir die Aanwending van die Mandament van Spolie [the
possibility of restoration of possession as essential element for the application of the
mandament van spolie] (University of Stellenbosch, master’s thesis, June 1982) pages 88-
113; and DG Kleyn, Die Mandament van Spolie in die Suid-Afrikaanse Reg [the mandament
van spolie in South African law] (University of Pretoria, doctoral thesis, January 1986), pages
396-406, both of whom, and the heavy preponderance of the authors they discuss, regard
Fredericks as alien to the proper terrain of the mandament.
33 MD Blecher ‘Spoliation and the Demolition of Legal Rights’ (1978) 95 South African Law
Journal 8-16 (who pointed out at page 13 that legislative reaction to Fredericks ‘was swift and
harsh’ – Parliament amended the Prevention of Illegal Squatting Act 52 of 1951 to permit a
land owner or local authority or government officials to remove structures erected without
consent without any prior notice of whatever nature); AJ van der Walt ‘Naidoo v Moodley
1982 (4) SA 82 (T) – Mandament van Spolie’ (1983) 46 THR-HR 237-240 and ‘Nog eens
Naidoo v Moodley – ‘n Repliek’ (1984) 47 THR-HR 429-439.
34 1997 (1) SA 526 (W).
35 1997 (1) SA 526 (W) 532H-535B.  Nugent J accepted at 535C that different considerations
may arise in cases of partial destruction, ‘leaving a substantial part of the property intact’, and
in Ierse Trog CC v Sultra Trading CC 1997 (4) SA 131 (C) Foxcroft J granted the mandament
even though the situation there demanded ‘rebuilding and a degree of substitution of
materials’ (136G-H).

‘It was submitted that the conclusion to which I have come would
encourage the destruction of property in the course of spoliation.  I do not
think that is correct.  I do not suggest that the law countenances wanton
destruction, nor that it does not afford a remedy.  Remedies to discourage
such conduct exist in both the civil and the criminal law.  My conclusion is
only that the mandament van spolie is not that remedy.’36
[24] The doctrinal analysis in Rikhotso is in my view undoubtedly
correct.  While the mandament clearly enjoins breaches of the
rule of law and serves as a disincentive to self-help, its object is
the interim restoration of physical control and enjoyment of
specified property – not its reconstituted equivalent.  To insist
that the mandament be extended to mandatory substitution of
the property in dispute would be to create a different and wider
remedy than that received into South African law, one that
would lose its possessory focus in favour of different objectives
(including a peace-keeping function).
[25] It is correct, as Mr Budlender for the appellants emphasised,
that the rule of law is a founding value of the Constitution.37
This would suggest that constitutional development of the
common law might make it appropriate to adapt the
mandament to include reconstituted restoration in cases of

36 1997 (1) SA 526 (W) at 535B-C.
37 Constitution s 1: ‘The Republic of South Africa is one sovereign democratic state founded

destruction.  And counsel is certainly correct in submitting that
the absence of a remedy mandating substitution of unlawfully
destroyed property could create a perverse incentive for those
taking the law into their own hands to destroy the disputed
property, rather than leaving it substantially intact.
[26] But as already indicated, I do not think that formulating an
appropriate constitutional remedy in this case requires us to
seize upon a common law analogy and force it to perform a
constitutional function.  For there is a further dimension to the
case, which takes the matter beyond even a developmentally
enhanced mandament:  the relief we give must vindicate the
Constitution.  As Kriegler J noted in Fose, ‘the harm caused by
violating the Constitution is a harm to the society as a whole,
even where the direct implications of the violation are highly
parochial.  The rights violator not only harms a particular
person, but impedes the fuller realisation of our constitutional
promise’:38
‘Our object in remedying these kinds of harms should, at least, be to
vindicate the Constitution, and to deter its further infringement’.39

on the following values: … (c) Supremacy of the Constitution and the rule of law.’
38 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 95.
39 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 96.

[27] Vindication, Kriegler J noted, ‘recognises that a Constitution
has as little or as much weight as the prevailing political culture
affords it’.40  Essentially, the remedy we grant should aim to
instil recognition on the part of the governmental agencies that
participated in the unlawful operation that the occupiers, too,
are bearers of constitutional rights, and that official conduct
violating those rights tramples not only on them but on all.  The
remedy should instil humility without humiliation, and should
bear the instructional message that respect for the Constitution
protects and enhances the rights of all.  It is a remedy special
to the Constitution, whose engraftment on the mandament
would constitute an unnecessary superfluity.
[28] The occupiers must therefore get their shelters back.
Placing them on the list for emergency Grootboom assistance
will not attain the simultaneously constitutional and individual
objectives that re-construction of their shelters will achieve.
The respondents should, jointly and severally, be ordered to
reconstruct them.  And, since the materials belonging to the
occupiers have been destroyed, they should be replaced with
materials that afford habitable shelters.  But because the
occupiers are avowedly unlawful occupiers, who are vulnerable

40 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 96.

to a properly obtained eviction order under PIE, the structures
to be erected must be capable of being dismantled.

Order
1. The appeal succeeds with costs, including the costs of two
counsel.
2. The order of the court below is set aside.
3. In its place, there is substituted:
‘(a) The application succeeds with costs, which are to be
paid jointly and severally by the respondents.
(b) The respondents are ordered, jointly and severally, to
construct for those individual applicants who were evicted on
31 March 2006, and who still require them, temporary
habitable dwellings that afford shelter, privacy and amenities
at least equivalent to those that were destroyed, and which
are capable of being dismantled, at the site at which their
previous shelters were demolished.’

E CAMERON
JUDGE OF APPEAL

CONCUR:
SCOTT JA
NUGENT JA
MAYA JA
SNYDERS AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Wednesday 30 May 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

Tswelopele Non-Profit Organisation v City of Tshwane
Metropolitan Municipality [2007] SCA 70 (RSA)

In a judgment delivered today, the Supreme Court of Appeal has
granted a novel order in a case where three governmental
agencies unlawfully evicted a group of squatters from an open
piece of land in Moreleta Park/Garsfontein, Pretoria on 31 March
2006 and destroyed their homes.

The eviction was carried out without a court order.  Officials from
the Tshwane Metropolitan Council, the Department of Home
Affairs and the South African Police Services burnt down the
shacks of about 100 squatters, who had been living on the land for
about 18 months.

The SCA has ordered the three agencies to re-construct the
destroyed homes on the land in question.

But because the squatters are admittedly unlawful occupiers, the
Court ruled that the homes to be constructed must be temporary
and capable of being dismantled, should the authorities in due
course succeed in obtaining a lawful eviction order.  (In those
proceedings, the question of the squatters’ alternative relocation
will be properly considered.)

In a unanimous judgment by Cameron JA, in which Scott JA,
Nugent JA, Maya JA and Snyders AJA concurred, the SCA found
that the officials’ wanton destruction of the occupiers’ dwellings
violated the Constitution.  That caused far-reaching damage – not
only to the squatters themselves (for to be hounded unheralded
from the privacy and shelter of one’s home, even in the most
reduced circumstances, is a painful and humiliating indignity), but
to the constitutional rights of all, since constitutional breaches of
this kind threaten the security of all.

The main debate in the case was about what remedy the court
should grant the squatters.  The SCA held that it would be
insufficient to leave the squatters to their remedy in a damages
claim, or in a criminal prosecution.  In addition, it was not adequate
to place the squatters in line for emergency shelter and housing
relief, since nationwide the need was great, and the queues very
long.  They were entitled to relief for their destroyed homes now,
which had to be re-constructed.

What was more, the SCA held, the Constitution itself had to be
vindicated – the remedy granted should instil recognition on the
part of the governmental agencies that participated in the unlawful
operation that the occupiers, too, are bearers of constitutional
rights, and that official conduct violating those rights tramples not
only on them but on all.  The remedy should instil humility without
humiliation, and should bear the instructional message that respect
for the Constitution protects and enhances the rights of all.

All three governmental respondents were therefore ordered to
construct for those individual applicants who were evicted on 31
March 2006, and who still require them, temporary habitable
dwellings that afford shelter, privacy and amenities at least
equivalent to those that were destroyed, and which are capable of
being dismantled, at the site at which their previous shelters were
demolished.

The case was brought by Mr Colin Wilfred Dredge, a Moreleta
Park resident who is the treasurer of Tswelopele, a registered non-
profit organisation committed to the upliftment of homeless and
destitute people in the Garsfontein/Moreleta Park area.