THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 144/2021

In the matter between:

THE CITY OF CAPE TOWN

APPELLANT

and

THE SOUTH AFRICAN
HUMAN RIGHTS COMMISSION
FIRST RESPONDENT

THE HOUSING ASSEMBLY
SECOND RESPONDENT

BULELANI QOLANI
THIRD RESPONDENT

THE ECONOMIC
FREEDOM FIGHTERS
FOURTH RESPONDENT

THE PERSONS WHO CURRENTLY
OCCUPY ERF 544, PORTION 1,
MFULENI
FIFTH RESPONDENT

THE MINISTER OF HUMAN
SETTLEMENTS
SIXTH RESPONDENT

THE MINISTER OF
COOPERATIVE GOVERNANCE
& TRADITIONAL AFFAIRS
SEVENTH RESPONDENT

THE NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN
POLICE SERVICE
EIGHT RESPONDENT

THE MINISTER OF POLICE
NINTH RESPONDENT

WESTERN CAPE PROVINCIAL
COMMISSIONER
TENTH RESPONDENT

Neutral Citation: City of Cape Town v The South African Human Rights
Commission (Case no 144/2021) [2021] ZASCA 182 (22 December 2021)
Coram: MATHOPO, SCHIPPERS, NICHOLLS, MBATHA and
MABINDLA-BOQWANA JJA
Heard:
15 November 2021
Delivered:  This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 14h00 on 22 December 2021.

Summary:
Civil Procedure – appealability of interim orders – not
appealable when subject to alteration by high court – exception is where
grave injustice would occur – claim for compensation final in nature –
cannot be granted in interim proceedings

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Meer and Allie JJ concurring):
1. The appeal against paragraphs 1- 4 of the order of the court a quo
is dismissed with costs, including the costs of two counsel.
2. The appeal against paragraph 5 of the order of the court a quo
succeeds. The order is set aside and replaced with the following:
‘The second intervening party’s claim against the first respondent
for the return of all building material and personal possessions,
seized by the its Anti Land Invasion Unit, alternatively, to
provide each household with equivalent building materials and to
pay each occupant R2000 as compensation for loss of personal
possessions, is dismissed.’

JUDGMENT

Nicholls JA (Mathopo, Schippers, Mbatha and Mabindla-Boqwana
JJA concurring)

[1] This is an appeal against an interim order granted by the Western
Cape Division of the High Court, Cape Town (high court). South Africa,
like most countries in the world, declared a national state of disaster due to
the Covid-19 pandemic. During the period 26 March – 30 April 2020, the
country was under a ‘hard lockdown’ in terms of section 23(1)(b) of the
Disaster Management Act 57 of 2002, followed by various levels of

lockdown, which persist until today. Regulations in terms of the Act
severely curtailed evictions.1 In July 2020, a video recording of a naked
man (later identified as Mr Bulelani Qolani) being dragged out of his
dwelling in an informal settlement by officials of the City of Cape Town,
went viral on social media platforms.

[2] These events prompted the South African Human Rights
Commission (the SAHRC) together with Mr Qolani and the Housing
Assembly – a social justice movement, to launch an urgent application in
the high court. In essence, the relief sought was aimed at preventing the
City of Cape Town (the City) from evicting persons and demolishing
structures, whether occupied or unoccupied, during the national state of
disaster, without a court order. This was couched as interim relief (Part A
of the notice of motion) pending a decision on Part B which primarily dealt
with the constitutionality of the City’s conduct and its Anti-Land Invasion
Unit (ALIU) which carried out the evictions and demolitions. Further relief
sought in Part B was whether the defence of counter-spoliation permitting
the eviction from, and demolition of, a structure whether occupied or
unoccupied, was constitutional and valid in terms of the law.
[3] At the commencement of the hearing in the high court, the Economic
Freedom Fighters (EFF) and the occupiers of Erf 544, Mfuleni
(the Occupiers) were granted leave to intervene as interested parties. Apart
from supporting the SAHRC and others, they sought additional relief that

1Regulation 36(1) of the Alert Level 3 Regulations Government Gazette No: 43364 GN 608 which
applied from 1 June 2020 provided that:
‘(1) Subject to sub-regulation (2), a person may not be evicted from his or her land or home during the
period of Alert Level 3 period.
(2) A competent court may grant an order for the eviction of a person from his or her land or home in
terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act no 62 of 1997) and the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No 19 of 1998)
. . .’

the City return all building materials and personal possessions seized from
them, alternatively, provide each household, whose dwelling had been
destroyed, with the equivalent building materials and that each occupant of
the property be paid R2000 as compensation for the loss of their personal
possessions.

[4] Judgment in the urgent application, Part A, was handed down on
25 August 2020 in the high court (per Meer and Allie JJ). The court a quo,
applying a purposive interpretation of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (PIE), granted the
interim relief sought, pending the determination of Part B. The orders
sought by the intervening parties were also granted, subject to minor
amendments.

[5] The City applied for leave to appeal the interim orders to the
high court which was refused. The appeal is with the leave of this Court.

[6] The City is the appellant before this Court; SAHRC is the first
respondent; the Housing Assembly is the second respondent; Mr Bulelani
Qolani is the third respondent; the fourth respondent is the EFF and the
Occupiers are the fifth respondents. The sixth to tenth respondents are the
Minister of Human Settlements, the Minister of Co-operative Governance
and Traditional Affairs, the Minister of Police, National Commissioner of
Police, the Western Cape Provincial Commissioner of Police, respectively.
These state respondents have not participated in the appeal and have
elected to abide by the decision of the Court. Any appeal relating to the
conduct of the police is accordingly abandoned.

[7] The hearing of Part B spanned seven days of argument and was
finalised on 5 November 2021 by a full court of the Western Cape.
Judgment was reserved, and is expected to be delivered early next year.
The respondents are in agreement that, with Part B having been heard, this
appeal is now to all intents and purposes moot. The City of Cape Town
persists with its appeal despite the imminent judgment of the full court.

[8] This Court in Zweni v Minister of Law and Order2 (Zweni) set out
the principles which make an order susceptible to appeal. These are that
the decision must be final in effect and not susceptible to alteration by a
court of first instance; it must be definitive of the rights of the parties; and
it must have the effect of disposing of at least a substantial portion of the
relief claimed in the proceedings. Interim orders, by their very nature, are
generally not final and will meet none of the criteria set out in Zweni,
rendering them unappealable in most cases.3 The rationale informing this
consideration is self-evident as courts are loath to allow court time and
resources to be squandered on appeals which will be subject to
reconsideration by the court a quo when the final relief is determined.
However, this is not an inflexible rule and the standard is always whether
it is in the interests of justice to hear the appeal.4

2 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533B.
3 City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19; 2016 (6) SA
279 (CC) para 40; Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 523J-533A; Cloete and
Another v S; Sekgala v Nedbank Limited [2019] ZACC 6; 2019 (5) BCLR 544 (CC); 2019 (4) SA 268
(CC); 2019 (2) SACR 130 (CC) para 39.
4 Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA);
[2010] 1 All SA 459 (SCA) para 20. See also International Trade Administration Commission v SCAW
South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 para 47-55; National
Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012(6) SA
223 (CC); 2012 (11) BCLR 1148 (CC) para 24; and Machele and Others v Mailula and Others [2009]
ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC) para 21 - 22.

[9] As stated by the Constitutional Court in Cloete v S; Sekgala v
Nedbank Limited:5
‘[57] . . . this Court has held that in considering whether to grant leave to appeal, it is
necessary to consider whether “allowing the appeal would lead to piecemeal
adjudication and prolong the litigation or lead to the wasteful use of judicial resources
or costs”. Similarly, in TAC I, this Court stated that “it is undesirable to fragment a case
by bringing appeals on individual aspects of the case prior to the proper resolution of
the matter in the court of first instance”. This is one of the main reasons why
interlocutory orders are generally not appealable while final orders are.

[58] This Court has held that it will only interfere in pending proceedings in the lower
courts in cases of “great rarity – where grave injustice threatens, and where intervention
is necessary to attain justice”.’ (Footnotes omitted.)

[10] After confirming that the interests of justice were paramount in
assessing the appealability of an interim order, the Constitutional Court in
National Treasury and Others v Opposition to Urban Tolling Alliance and
Others6 went on to set out what factors a court should consider in assessing
where the interests of justice lay:
‘. . . To that end, [a court] must have regard to and weigh carefully all the germane
circumstances. Whether an interim order has a final effect or disposes of a substantial
portion of the relief sought in a pending review is a relevant and important
consideration. Yet, it is not the only or always decisive consideration. It is just as
important to assess whether the temporary restraining order has an immediate and
substantial effect, including whether the harm that flows from it is serious, immediate,
ongoing and irreparable.’

[11] The interests of justice standard will inevitably involve a
consideration of any irreparable harm. To successfully appeal an interim

5 Cloete and Another v S; Sekgala v Nedbank Limited [2019] ZACC 6; 2019 (5) BCLR 544 (CC);
2019 (4) 268 (CC); 2019 (2) SACR 130 (CC).
6 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18;
2012 (6) SA 223 (CC) para 25.

order an applicant will have to show that it will suffer irreparable harm if
the interim appeal were not granted.7 Even so, stated the Constitutional
Court in International Trade Administration Commission v SCAW South
Africa (Pty)8, irreparable harm although important, is not the sole
consideration and the interests of justice require an evaluation of a number
of factors:
‘. . . The test of irreparable harm must take its place alongside other important and
relevant considerations that speak to what is in the interests of justice, such as the kind
and importance of the constitutional issue raised; whether there are prospects of
success; whether the decision, although interlocutory, has a final effect; and whether
irreparable harm will result if the appeal is not granted . . .’.

[12] The first enquiry is to ascertain whether the orders granted by the
high court have a final effect. For this it is necessary to compare the orders
granted in respect of Part A and the orders sought in Part B, to ascertain to
what extent they overlap.

[13] The interim orders granted in Part A (the order) are:
‘Pending Part B
1. That the First Respondent, its Anti-Land Invasion Unit (ALIU) and any
private contractors appointed by the First Respondent to do the same or
similar work or to perform the same or similar functions as the ALIU, are
interdicted and restrained from evicting persons from, and demolishing, any
informal dwelling, hut, shack, tent or similar structure or any other form of
temporary or permanent dwelling or shelter, whether occupied or
unoccupied, throughout the City Metropole, while the state of disaster
promulgated by the Third Respondent in terms of section 23(1)(b) of the

7 Machele and Others v Mailula and Others [2009] ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR
767 (CC) para 27. See also Minister of Health v Treatment Action Campaign (No 1) [2002] ZACC 16;
2002 (5) SA 703 (CC) para 12.
8 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC) para 55.

Disaster Management Act 57 of 2002, as amended, remains in place, except
in terms of an order of court duly obtained;
2. That to the extent that the First Respondent and its authorised agents (such
as the ALIU and private contractors aforementioned) evict and/or demolish
any informal dwelling, hut, shack, tent or similar structure or any other form
of temporary or permanent dwelling or shelter, whether occupied or
unoccupied, in terms of a court order, that they do so in a manner that is
lawful and respects and upholds the dignity of the evicted persons, and that
they are expressly prohibited from using excessive force, and/or from
destroying and/or confiscating the materials which is the property of the
evictees;
3. That to the extent that any evictions and/or demolitions are authorised by
court order, that the South African Police Services, when its members are
present during an eviction or demolition is directed to ensure that the said
evictions are done lawfully and in conformity with the Constitution, in
accordance with the SAPS’s Constitutional duty to protect the dignity of the
persons evicted.
4. That the First Respondent is interdicted and restrained from considering,
adjudicating and awarding any bids or tenders received in response to
Tender 308S/2019/20 for “The Demolition of Illegal and Informal structures
in the City of Cape Town”.
5. That the First Respondent is to return within a week of the date of this order
all building materials and personal possessions seized by its Anti-Land
Invasion Unit from the second applicant between the period 1 May 2020 to
date.
5.1 The Attorney for the Second Intervening Party is directed to furnish
the First Respondent with a list of names of those persons claiming
compensation in the sum of R2000 each in lieu of loss of personal
belongings
5.2  The First Respondent is to pay R2000 to each person whose
entitlement to compensation is agreed upon. In the event of
disagreement by the First Respondent as to entitlement to
compensation once the list is presented, the parties may approach
the Court for relief.

6. That the First Respondent shall pay the costs of the application save for the
costs in respect of 25 July 2020. The Fourth, Fifth and Sixth Respondents
shall bear the costs occasioned by their opposition to the relief sought at
prayer 2.3 of the Notice of Motion.’

[14] In Part B the relief sought by the respondents, in summary, is:
1. A declaration that the evictions and demolitions, referred to Part
A, without a valid court order, are unlawful and inconsistent with
the Constitution.
2. That to the extent that the evictions and demolitions take place in
terms of a court, this is done in the presence of the police who
should ensure that they are conducted lawfully in a manner that
protects their dignity and accords with the Constitution.
3. A declaration that the decision of the City to mandate the ALIU
to demolish structure which it believes to be unoccupied, is
unlawful, unconstitutional and be set aside.
4. That the procedure of using a visual assessment to determine
whether or not a structure is occupied as a home, and therefore
eligible to be demolished, be declared unlawful, unconstitutional
and be set aside.
5. That the common law principle of counter spoliation, insofar as
it authorises the eviction from, and the demolition of, any
structure whether occupied or unoccupied be declared invalid
and unconstitutional.
7. That the decision to adjudicate Tender 308S/2019/20 for “The
Demolition of Illegal and Informal Structures in the City of Cape
Town” be declared unlawful, unconstitutional and be set aside.

[15] A cursory comparison of the orders sought in Part A with those in
Part B immediately reveals that the only issues excluded from the

determination of the full court is the question of the return of the building
materials seized by the ALIU; the compensation of R2000 in lieu of loss
of personal belongings and the question of costs. This much was conceded
by counsel for the City. Nonetheless this Court is called upon by the City
to address all the interim orders made against it, without exception, on the
basis that the court a quo did not apply the correct test in finding that the
requirements for interim interdictory relief had been met.

[16] The next enquiry is whether there will be irreparable harm or a grave
injustice to the City if any of the interim orders are not set aside. It is
difficult to conceive of a situation where judicial oversight of evictions and
demolitions could ever amount to irreparable harm. Or indeed a declarator
that, if an eviction or demolition is carried out in terms of a court order, the
ALIU should act lawfully and constitutionally, and the police, if present,
should ensure that this is done. This is precisely how the police and ALIU
are legally obliged to conduct themselves, irrespective of any court order.
The police respondents have not appealed, presumably in acknowledgment
of this fact. Significantly, the City is not precluded from evicting persons
and/or carrying out demolitions. It is merely prohibited from doing so
without judicial oversight. There can be no irreparable harm if the City is
compelled to seek a court order before evicting persons during the national
state of disaster, and pending Part B.

[17] The interpretation of PIE, particularly whether it applies to
unoccupied structures, and the unconstitutionality of counter-spoliation, its
scope and meaning in the context of evictions, are issues to be determined
in Part B. For this Court to entertain an appeal in respect of those issues
which have already been argued, and will be determined by the full court
in the Western Cape, would not only usurp the function of that court, but

lead to parallel judgments on the same issue, delivered a few months apart.
This gives rise to the potential for conflicting decisions between the high
court and this Court, clearly a most undesirable outcome to be avoided, if
at all possible. It is exactly this piecemeal adjudication that the
Constitutional Court has deprecated.9

[18] Insofar as the adjudication of the tender is concerned, the City argues
that paragraph 4 of the order was predicated upon incorrect facts but was,
in any event, unnecessary. This is because any harm that may be
apprehended would be covered under paragraph 2 of the order. This might
be so but the tender, too, is the subject matter of Part B. The adjudication
of the tender will be determined by the full court which would render any
decision that this Court may give on an interim basis, irrelevant.

[19] None of the relief sought in paragraphs 1- 4 of the order is final in
effect. Nor will any irreparable harm or grave injustice occur should the
interim orders remain unaltered until the final relief is determined. The
interests of justice do not dictate that the interlocutory orders in these
paragraphs are appealable and the appeal in respect of these interim orders
falls to be dismissed.

[20] The only issue, other than costs, which the determination of Part B
will not finally resolve, is that of the monetary compensation of R2000 in
lieu of loss of personal belongings and the return of the building materials.
The relief the Occupiers sought in their notice of motion was the return of
their building materials and personal possessions.10 In the alternative, an

9 Cloete and Another v S; Sekgala v Nedbank Limited [2019] ZACC 6; 2019 (5) BCLR 544 (CC); 2019
(4) 268 (CC); 2019 (2) SACR 130 (CC).
10 It should be noted that para 5 of the order directed the City to return items seized by the ‘second
applicant’ – the Housing Assembly. This is clearly an error and should have read the ‘second
intervening party’- the Occupiers.

order was sought that the City provide each household whose dwelling had
been destroyed with equivalent building materials, and pay each occupant
the sum of R2000 as compensation for loss of their personal possessions.
Notwithstanding the above, the order granted by the high court was not cast
in the alternative. Instead, it directed the City to return all building
materials and personal possessions within one week, and that R2000 be
paid as compensation for loss of personal possessions.

[21] For this award the high court relied on s 172(1)(a)11 of the
Constitution which empowers a court to make an order that just and
equitable where there has been a breach of constitutional rights, including
the award of constitutional damages. While courts enjoy a wide discretion
as to what remedy would be effective, suitable and just in any given
situation,12 the high court could not avail itself of an award of constitutional
damages on the facts of this case. In the first place the relief granted was
final and not of an interim nature. The order has an immediate effect and
will not be reconsidered on the same facts in the final proceedings. While
paragraph 5.2 of the order makes provision for recourse to the high court,
this relates to the entitlement of a particular individual rather than the
principle itself which remains final.

[22] Once the relief sought is final, the Plascon Evans rule13 applies and
the respondent’s version must prevail, together with the admitted facts put
up by the applicant, unless these are far-fetched and clearly untenable. The

11 Section 172 of the Constitution provides:
‘(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency’.
12 Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others [2021] ZACC 45 para
43.
13 Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623
(A); 1984 (3) SA 620.

City admits that it seized the building materials of the Occupiers. However,
it denies taking any of their personal possessions when it demolished the
structures.

[23] This denial alone should be the end of the matter, particularly where
there is no evidence of the nature of the personal effects, the value thereof
and from whom they were taken. For payment of compensation the
Occupiers placed reliance on this Court’s decision in Ngomane v City of
Johannesburg Metropolitan Municipality and Another14 (Ngomane),
where constitutional damages were awarded. Ngomane dealt with the
destruction and confiscation of the property of a group of homeless people
living under a bridge in the city of Johannesburg. After finding that the
removal and destruction of their personal effects was an arbitrary
deprivation of their right to privacy enshrined in s 14(c) of the Constitution,
which included the right not to have their property seized, the Court
ordered compensation of R1500 per person. Despite there being other
remedies at their disposal, in light of the applicants' desperate
circumstances, this Court determined that an award of constitutional
damages was the appropriate remedy.

[24] The fundamental difference in Ngomane is that the Court there was
dealing with final relief and the conduct of the City of Johannesburg was
found to be unconstitutional. Here not only has the City denied taking any
personal possessions, but any interim findings of unconstitutionality by the
high court are subject to reconsideration by the full court. The final word
on whether the evictions and demolitions were unlawful, or amounted to
an arbitrary deprivation of property, has not been spoken. This is what the

14 Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another [2019] ZASCA
57; [2019] 3 All SA 69 (SCA); 2020 (1) SA 52 (SCA) para 27.

full court will finally determine. There was no basis, at that stage, for the
high court to have awarded financial compensation to the Occupiers. Here
there was a paucity of detail whereas in Ngomane there was evidence of
the nature of the items removed and destroyed and a list of their owners.
Accordingly, the appeal in regard to the payment of compensation must
succeed.

[25] The high court also directed the City to return all building materials
seized by the ALIU ‘between the period 1 May 2020 to date’15. As with the
personal possessions, the details of building materials seized, and from
whom they were taken, are scanty. In the main, the confiscations relate to
the demolitions at Mfuleni, commonly known as Zwelethu, Ocean View,
and the demolition of Mr Qolani’s property.

[26] Mr Viwe Sigenu, the deponent on behalf of the Occupiers, stated
that seven evictions had taken place in Zwelethu from the end of May 2020
to 13 July 2020. Structures had been demolished and ‘on some days’ the
ALIU would confiscate building materials and personal possessions. Not a
single owner of any building materials was identified. The City’s response
was that the area spans two properties, one owned by the Cape Nature
reserve and the other by the City. The Occupiers are aware that the
Cape Nature property is not owned by the City as they were served with an
application by the Western Cape Nature Conservation Board. This resulted
in an interim interdict authorising the City to take reasonable steps to
demolish any illegally erected structures on the Cape Nature property, to
prevent any persons from entering the area and to remove such persons and
their belongings.16

15 The date of the order was 25 August 2020.
16 Western Cape Nature Conservation Board v The Illegal Trespassers of Erf 544 and Others
(Case Number 8913/2020) (WCC).

[27] The Housing Assembly referred to an eviction operation which took
place in Ocean View on 15 May 2020. That day, Ms Kashiefa Achmat, the
chairperson of the Housing Assembly stated that she was present when the
ALIU demolished structures and confiscated materials. No detail is
provided as what building materials were confiscated, and from whom they
were taken. The City’s response is that it acted on a complaint of an
unlawful land invasion and ten unoccupied structures were dismantled and
most of the building material removed. Moreover, it contends that the
removal of unoccupied structures was expressly contemplated in a court
order of the same division dated 17 April 2020.17

[28] The eviction of Mr Qolani and the demolition of his structure took
place on 1 July 2020. The version of the City was that the structure
allegedly occupied by him, was in fact unoccupied. ALIU officials stated
that his structure had not been erected when they attended the site the day
before, on 30 June 2020.

[29] In short, the City alleged that the various demolitions that took place
over that period, concerned structures that were unoccupied, and it was
therefore entitled to demolish them. All building materials removed are
kept in storage for a period of 21 days, after which they are disposed of.
The Occupiers are entitled to make arrangements to collect their building
materials from the City’s depot in Ndabeni. This is not denied.

[30] Much of the content of the City’s answering affidavit and
supplementary answering affidavit was disputed in reply. This underscores
the difficulty in granting the relief sought in its present formulation. As

17 Habile and Others v The City of Cape Town (Case No 5576/2020) (WCC).

Harms JA said in NDPP v Zuma,18 motion proceedings ‘are all about the
resolution of legal issues based on common cause facts’ and ‘cannot be
used to resolve factual disputes because they are not designed to determine
probabilities’. For these reasons, the appeal against paragraph 5 of the
high court’s order must succeed.

[31] This does not mean that the door is closed to the Occupiers. If, after
a decision is made in respect of Part B, the conduct of the City is found to
be unlawful, it is open to them to apply for the appropriate relief.

[32] What remains is the appeal against costs. The City complains that
costs are not generally awarded in interlocutory proceedings as the court
finally hearing the matter may be better placed to determine whether the
application was well-founded. Costs are always within the discretion of the
court unless it has misdirected itself, thereby reaching a decision that could
not have reasonably been made if it had properly applied itself to the
relevant facts and principles.19 The high court gave reasons for its decision.
There is no indication that the high court failed to exercise its discretion
judicially. In any event, the appeal against costs was not pursued with much
enthusiasm by counsel for the City.

[33] Concerning the costs of this appeal, the costs should follow the
result, and the respondents are, to an overwhelming extent, the successful
parties. We were urged to allow costs for three counsel. There is no
justification for this.

18 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1)
SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26.
19 Trencon Construction (Pty) Ltd v Industrial Development Corporation of SA Ltd and Another [2015]
ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) at para 88, quoting from National
Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA
1 (CC); 2000 (1) BCLR 39 (CC) para 11.

[34] In the result, the following order is made:
3. The appeal against paragraphs 1- 4 of the order of the court a quo
is dismissed with costs, including the costs of two counsel.
4. The appeal against paragraph 5 of the order of the court a quo
succeeds. The order is set aside and replaced with the following:
‘The second intervening party’s claim against the first respondent
for the return of all building material and personal possessions,
seized by the its Anti Land Invasion Unit, alternatively, to
provide each household with equivalent building materials and to
pay each occupant R2000 as compensation for loss of personal
possessions, is dismissed.’

____________________
C H NICHOLLS
JUDGE OF APPEAL

APPEARANCES:

For appellant:
S Rosenberg SC (with him, M Adhikari and
K Perumalsamy)
Instructed by:
Fairbrudges Wertheim Becker Attorneys, Cape Town

McInttyre van der Post, Bloemfontein

For 1st to 3rd respondents: N Arendse SC (with him S Magardie,
M Bishop and E Webber)
Instructed by:
Legal Resources Centre, Kenilworth

Webbers Attorneys, Bloemfontein

For 4th to 5th respondents: T Ngcukaitobi SC (with him, T Ramogale)
Instructed by:

Ian Levitt Attorneys, Johannesburg

England Slabbert Attorneys Inc, Cape Town

Lovius Block Inc., Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
22 December 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
City of Cape Town v The South African Human Rights Commission and others (Case no
144/2021) [2021] ZASCA 182 (22 December 2021)
Today the Supreme Court of Appeal (SCA) dismissed in large part, with costs, an appeal
brought by the City of Cape Town, against the interim decision of the Western Cape Division
of the High Court, Cape Town (the high court). The SCA upheld an appeal against a claim for
compensation.

In July 2020, a video recording of a naked man (Mr Bulelani Qolani) being dragged out of his
dwelling in an informal settlement by officials of the City of Cape Town went viral on social
media. Following this, the South African Human Rights Commission (the SAHRC), Mr Qolani
and the Housing Assembly (a social justice movement) launched an urgent application in the
high court to prevent the City of Cape Town (the City) from evicting persons and demolishing
structures, whether occupied or unoccupied, during the national state of disaster, without a
court order. The application was for interim relief (Part A), pending a decision on Part B, which
primarily dealt with the constitutionality of the City’s conduct and its Anti-Land Invasion Unit
(ALIU), which carried out the evictions and demolitions, and whether the defence of counter-
spoliation permitting the eviction and demolition of a structure, occupied or unoccupied was
constitutional. The high court also granted the Economic Freedom Fighters (EFF) and the
occupiers of Erf 544, Mfuleni (the Occupiers) leave to intervene as interested parties. The latter
sought additional relief that the City must provide each household, whose dwelling was
destroyed, with the equivalent building materials and that each occupant of the property be paid
R2000 as compensation for the loss of their personal possessions. The high court granted
Part A, pending the determination of Part B. The orders sought by the intervening parties were
also granted, subject to minor amendments.

In the SCA the City of Cape Town was the appellant; SAHRC was the 1st respondent; the
Housing Assembly the 2nd respondent; Mr Bulelani Qolani was the 3rd respondent; the 4th
respondent was the EFF and the Occupiers were the 5th respondents. The 6th to 10th
respondents were state respondents who did not participate in the appeal.

The hearing of Part B was finalised on 5 November 2021 by a full court of the Western Cape
and judgment was reserved. The respondents agreed that this appeal was now to all intents and
purposes moot. The City persisted with its appeal despite the imminent judgment of the full
court, on the basis that the court a quo did not apply the correct test in finding that the
requirements for interim interdictory relief had been met.

The SCA relied on the principles set out in Zweni v Minister of Law and Order [1993] 1 All
SA 365 (A) that an order is appealable if the decision is final in effect and not susceptible to
alteration by a court of first instance; if it is definitive of the rights of the parties; and if it has
the effect of disposing of a substantial part of the case. The SCA held that on comparing the
interim orders sought to be appealed with those sought in Part B, it was clear that the decision
was not final in effect as these orders would be reconsidered by the full court in Part B. The
only issues excluded from the determination of the full court was the question of the return of
the building materials seized by the ALIU; the compensation of R2000 in lieu of loss of
personal belongings and the question of costs. Nonetheless, the SCA was called upon to address
all the interim orders made, without exception.

Next the SCA considered whether there would be irreparable harm or a grave injustice to the
City if any interim orders were not set aside. The SCA found that it was difficult to conceive
of a situation where judicial oversight of evictions and demolitions could ever amount to
irreparable harm. The City was not precluded from evicting persons but merely prohibited from
doing so without judicial supervision. The orders were not final in effect and there would be
no irreparable harm if the interim orders were not set aside. The appeal in respect of those
interim orders had to be dismissed.

The SCA found that the only issue, other than costs, which the determination of Part B would
not finally resolve, was the monetary compensation of R2000 in lieu of loss of personal
belongings and the return of the building materials. The SCA found that the relief sought
therein was final and not of an interim nature and should not have been awarded in interim
proceedings. In addition, there was insufficient detail on the papers as to the nature of the items
taken and from whom they had been taken. The appeal was successful in this regard.
~~~~ends~~~~