THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 203/2014
Reportable
In the matter between:

IRIS ARILLDA FISCHER                                                           First Appellant
CITY OF CAPE TOWN

Second Appellant

and

BOITUMELO RAMAHLELE

First to Forty-Sixth Respondents
AND FORTY-SIX OTHERS

Neutral citation: Fischer v Ramahlele (203/2014) [2014] ZASCA 88 (4 June
2014)

Coram:
Mpati P, Theron and Wallis JJA, Hancke and Swain AJJA

Heard:

27 May 2014

Delivered
4 June 2014

Summary: Practice – Applications and motions – dispute of fact – referred for
the hearing of oral evidence - not open to the court to decide mero
motu not to hear oral evidence and determine the application on legal
points not emerging from the papers and not raised by the parties.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from:  Western Cape High Court, Cape Town (Gamble J sitting as
court of first instance):
1 The appeal is upheld with no order as to costs.
2 Paragraphs C to F of the order of the court below are set aside.
3 The counter application is referred back to the Western Cape High Court for the
hearing of oral evidence on a date to be arranged but otherwise in terms of the
order of Zondi J made on 15 January 2014.
________________________________________________________________
JUDGMENT
________________________________________________________________
Theron and Wallis JJA (Mpati P, Hancke and Swain AJJA concurring):

[1] On 27 May 2014, this court granted an order as set out above. These are the
reasons for that order.

[2] On 7 and 8 January 2014 the City of Cape Town‟s Anti Land Invasion Unit
(the Unit), with the assistance of both the Metro police and the South African
Police Service (SAPS), demolished certain structures erected on Erf 150
(remaining extent) Philippi, the property of Mrs Iris Fischer, an elderly widow. On
10 January 2014, Mrs Fischer and the City, the first and second appellants,
respectively, launched an urgent application (the main application) seeking an
interdict restraining a group of persons described as „persons whose identities are
to the applicants unknown and have attempted or are threatening to unlawfully

occupy Erf 150 (remaining extent), Philippi‟ from seeking to occupy that property
or erecting structures thereon.

[3] A rule nisi was issued in the main application and the return date was
anticipated by Mr Ramahlele and 40 other people, who opposed the confirmation
of the rule nisi. They in turn launched a counter application against the City, in
which they alleged that they had been in peaceful and undisturbed possession of
the structures which they had erected on the property and that the demolished
structures were their homes. They sought the following relief in the counter
application:
„4.1 declaring the conduct of the City of Cape Town in demolishing and/or dismantling the
informal structures erected by the applicants at erf 150 (remaining extent) Philippi, to be
unconstitutional and unlawful;
4.2 interdicting and restraining the respondents from evicting or demolishing any informal
structures erected by the applicants at erf 150 (remaining extent) Philippi without a valid Court
Order;
4.3 interdicting and restraining the respondent from demolishing, removing or otherwise
disposing of any informal structures, or the constituent materials of such structures, erected by
the applicants at erf 150 (remaining extent) Philippi;
4.4 . . . .;
4.5 directing the City of Cape Town to construct for those applicants, whose informal structures
were demolished on 7 and 8 January 2014 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
informal housing structures were demolished.‟
The high court (Gamble J) granted declaratory relief and mandatory interdicts
against the City in the counter application, substantially in the form sought. This
appeal is against that judgment with the leave of the high court.

[4] Mrs Fischer is the registered owner of the property which is situated on the
Cape Flats, south of Cape Town international airport and adjacent to another long-

standing informal settlement. The property is approximately 2.7 hectares in extent,
unfenced and according to the City has been covered with dense and overgrown
shrubbery. Mrs Fischer has resided on the property for the past forty seven years.
There are two brick structures on the property, one consisting of three bedrooms
and the other of two bedrooms. Mrs Fischer and her son Reuben, reside in the one
structure and the other structure is occupied by Mrs Fischer‟s other son, William
and his family. The respondents are a group of 37 homeless and poor people who
lived in the rural areas of the Eastern Cape and moved to Cape Town to find
employment. None of the respondents have full time employment and they survive
from hawking, part-time domestic work and social grants.

[5] Until May 2013, the Fischers resided on the property without interference.
In May 2013 unlawful occupiers began to invade the property for the first time.
This invasion took place in relation to the property as well as several neighbouring
properties. The City, at that stage took measures, carried out by members of the
Unit, to curtail and manage the invasion. Between 30 April 2013 and 01 May 2013
the City dismantled a number of illegal structures both on the property and on
neighbouring properties. Between June and August 2013, City officials conducted
regular patrols in the area in order to prevent further incursions onto the property
by unlawful occupiers. During this period approximately twenty structures were
erected on the property and became occupied. According to the City, these
structures are currently on the property.

[6] During August 2013, the City advised Mrs Fischer to obtain legal assistance
on removing the occupiers from the property. The City also served a notice on
Mrs Fischer in terms of which she was directed to take steps to evict the unlawful
occupiers. Mrs Fischer subsequently instructed an attorney, who despite accepting
partial-payment, did not provide any meaningful assistance to her. Since she did
not have the necessary finances to secure alternative legal representation, she

sought assistance from the City and SAPS but was informed by the latter that they
would not be able to assist her without a court order.

[7] According to the City, a large group of people whom it contends are the
respondents, started erecting structures on the property on 7 January 2014. City
officials were called to the property and commenced with an operation to
dismantle the structures which were recently erected or in the process of being
erected on the property at the time. In an affidavit filed on behalf of the City, Mr
Stephen Clyde Hayward, the head of the Unit, described the events that occurred
on 7 and 8 January 2014:
„13.9 On 7 January 2014, there were about fifteen vehicles queuing up on the side of Sheffield
Road. The vehicles contained building materials of persons who were seeking to erect structures
on the property. Some persons were already erecting structures on the property, while others
were queuing up to do so. On the same day, the City demolished thirty two structures on the
property. The City was cautious in the approach it applied in this regard and was guided by the
following:
The City did not demolish or indeed interfere with any structures that appeared to be a home or
a dwelling. In any event, they were certainly not structures that were occupied. In this regard,
[the] City monitored the property. At about 2 p.m. on 7 January 2014, the City noticed that
persons were moving onto the property and erecting structures thereon. The City has staff that
undertakes random patrols of hot spot areas for land invasions, as the property was. In addition,
the City received an alert of the impending invasion. The City immediately informed SAPS and
the Law Enforcement Metro Police. At 5p.m. the City convened a planning session to respond
to the invasion at the Metro Police in Philippi. The demolition operation started at 6 p.m. and, as
stated, thirty two structures were ultimately demolished. I state without reservation that none of
these structures constituted dwellings or a persons‟ home and nor were they occupied. Given
that the Anti Land Invasion Unit had regularly patrolled the area since May 2013, its members
were familiar with structures that had already been erected on the property and were cautious
not to interfere with those structures. Instead, it was only structures that had been constructed
(and uninhabited) or were in the process of being constructed that were demolished. I once
again reiterate, no one was residing in the structures that were demolished. When the Law
Enforcement Agencies left the property on 7 January 2014 (at about 7 p.m.) there were between

20 and 30 structures on the property. I should mention that even at that stage there were about
ten more structures that were left (due to some degree of uncertainty by the enforcement officers
as to whether they were occupied or not).
13.10 Notwithstanding the aforegoing, when the law enforcement officials returned to the
property on 8 January 2014 (at about 9 a.m.) there were about a further fifteen new structures
(that had been re-erected overnight). The City immediately launched an operation to demolish
those structures. I should again reiterate that none of the structures which the City demolished
were “dwellings”, “homes” or indeed inhabited by people. The structures had been erected over
a period of 12 to 15 hours (i.e. between the City having left the property the previous day and
having returned the next day). This operation concluded at about 10:30 a.m. on 8 January 2014.
Since then, the City has undertaken random patrols and the invasion appears to have subsided
since as no new structures were seen.‟

[8] The affidavits delivered on behalf of the applicants in the counter
application alleged that they had moved onto the property at various times
between April 2013 and January 2014, erected structures and made those
structures their homes. The City and Mrs Fischer denied this and claimed that the
structures demolished on 7 and 8 January 2014 were structures erected or being
erected on those days as part of a land invasion and that no-one‟s home had been
demolished. The deponents to affidavits on behalf of the City explained that the
City recognised that it could not evict people and demolish their homes, even if
unlawfully constructed and occupied, without complying with the requirements of
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998 (PIE). They denied, however, that this was what had occurred.

[9] There was thus a clear dispute of fact between the parties in respect of the
counter application. Wisely, they recognised this and by agreement on 15 January
2014 obtained an order from Zondi J referring the dispute for the hearing of oral
evidence. The issue as defined in the order was:

„Whether the structures which were dismantled by the City of Cape Town on 7th and 8th January
2014, at the property known as Erf 150 Philippi-East remaining extent, were those which were
unoccupied and vacant.‟

[10] Arrangements were made, in view of the urgency of the matter, for that
evidence to be heard on 19 February 2014. On that date the case came before
Gamble J. This appeal arises because he did not hear the evidence needed to
resolve the dispute between the parties but instead decided the case on what he
regarded as a legal issue. He directed (required) that the parties address the court
on two points of law which related to the City‟s conduct during the demolition
operations on 7 and 8 January 2014; First, the locus standi of the City to act as it
had done bearing in mind that its actions took place on private land and second, on
what basis the City claimed that its conduct was lawful in the context of the
provisions of s 26(3) of the Constitution and PIE. After hearing argument on these
issues the court below found – in relation to the first question – that the City had
acted only after Mrs Fischer had asked its help and, therefore, the question of the
circumstances under which the City could act mero moto did not arise. It answered
the second question against the City, finding that PIE applied. The factual basis
upon which it did so is, however, unclear, although it appears to have involved
deciding factual disputes without evidence.

[11] The order granted by the high court reads:
„A. The main application, being the return date of the rule nisi issued in the application for
urgent interdictory relief by Binns-Ward J on 10 January 2014 is postponed for hearing on the
semi-urgent roll to Thursday 22 may 2014.
B. The costs associated with the main application are to stand over for later determination.
C. It is declared that the conduct of the City of Cape Town in demolishing and/or dismantling
the informal structures erected by the counter applicants at erf 150 (remaining) Philippi, was
unconstitutional and unlawful.

D. The Respondents in the counter application are interdicted and restrained from evicting or
demolishing any informal structures erected by the applicants at erf 150 (remaining extent)
Philippi without a valid court order.
E. The Respondents in the counter application are interdicted and restrained from demolishing,
removing or otherwise disposing of any informal structures, or the constituent materials of such
structures, erected by the counter applicants at erf 150 (remaining extent) Philippi.
F. The City of Cape Town is directed to construct for those counter applicants whose informal
structures were demolished on 7 and 8 January 2014, 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
informal housing structures were demolished.
G. Each party will bear its own costs of suit in regard to the counter application.‟

[12] It is pertinent to set out at the outset what was in issue between the parties
arising from the claim that the counter applicants had been despoiled of their
homes. The issue was, whether on 7 and 8 January 2014 the counter applicants
had been in possession and occupation of the structures that the City demolished
on those days. They did not challenge the City‟s right to act as it had done in
relation to vacant and unoccupied structures unlawfully erected on private
property. The only dispute was the purely factual one of whether those structures
were unoccupied and vacant on 7 and 8 January 2014. The case advanced by the
counter applicants was that they were erected earlier and were occupied by the
counter applicants as their homes. If they were unoccupied and vacant then the
counter application fell to be dismissed because the counter applicants had not
been despoiled. If the City had demolished people‟s homes then it acknowledged
that it had acted unlawfully and appropriate relief had to be granted.

[13] Turning then to the nature of civil litigation in our adversarial system it is
for the parties, either in the pleadings or affidavits, which serve the function of

both pleadings and evidence,1 to set out and define the nature of their dispute and
it is for the court to adjudicate upon those issues.2 That is so even where the
dispute involves an issue pertaining to the basic human rights guaranteed by our
Constitution, for „it is impermissible for a party to rely on a constitutional
complaint that was not pleaded‟.3 There are cases where the parties may expand
those issues by the way in which they conduct the proceedings.4 There may also
be instances where the court may mero motu raise a question of law that emerges
fully from the evidence and is necessary for the decision of the case. That is
subject to the proviso that no prejudice will be caused to any party by its being
decided.5 Beyond that it is for the parties to identify the dispute and for the court
to determine that dispute and that dispute alone.

[14] It is not for the court to raise new issues not traversed in the pleadings or
affidavits, however interesting or important they may seem to it, and to insist that
the parties deal with them.6 The parties may have their own reasons for not raising
those issues. A court may sometimes suggest a line of argument or an approach to
a case that has not previously occurred to the parties.7 However, it is then for the
parties to determine whether they wish to adopt the new point. They may choose
not to do so because of its implications for the further conduct of the proceedings,
such as an adjournment or the need to amend pleadings or call additional
evidence. They may feel that their case is sufficiently strong as it stands to require
no supplementation. They may simply wish the issues already identified to be
determined because they are relevant to future matters and the relationship

1 Hart v Pinetown Drive-In Cinema (Pty) Ltd 1972 (1) SA 464 (D) at 469 C-E.
2 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 15 and 19.
3 Phillips & others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) para 39.
4 Shill v Milner 1937 AD 101 at 105.
5 CUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) para 68; Barkhuizen v Napier 2007 (5) SA 323 (CC)
para 39; Maphango & others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) paras 109-114.
6 The power of a court under rule 33(4) to separate an issue or issues mero motu is a power to be exercised in
respect of issues that already emerge from the pleadings. It is not a power to formulate new issues not chosen by the
parties and to require them to be debated.
7 Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) at 345A-E. For a recent
example in another jurisdiction see Cramaso LLP v Ogilvie-Grant, Earl of Seafield and Others [2014] 2 All ER
270 (SC) paras 4-7.

between the parties. That is for them to decide and not the court.8 If they wish to
stand by the issues they have formulated, the court may not raise new ones or
compel them to deal with matters other than those they have formulated in the
pleadings or affidavits.

[15] This last point is of great importance because it calls for judicial restraint.
As already mentioned Gamble J „required‟ the parties to argue as a preliminary
issue what he described as two issues of legality. Although he added that the
parties were amenable to these proposals, counsel who appeared in this Court and
in the court below, confirmed that the judge‟s own description, that he „required‟
the points to be argued, was accurate. They were not asked for their submissions
on whether this was an appropriate approach to the matter or even, which was
more pertinent, whether either question was in issue in the case. Nor were they
asked whether their clients agreed to broaden the issues to encompass these points.
The authority on which the judge relied in adopting this approach9 was not in
point. That was a case where the court, on the application of one of the parties,
held that he could dispense with the hearing of oral evidence, notwithstanding the
case having been referred for the hearing of such evidence, because the questions
raised on the papers could be determined without hearing such evidence and the
evidence could not affect the resolution of those issues. It is a far cry from that for
a court to raise issues that do not emerge from the papers and have not been
canvassed in the affidavits and require that those be argued instead of hearing oral
evidence and deciding the issues raised by the parties.

[16] In argument before this Court counsel for the City said that they had been
offered no choice. On the first day of the hearing the judge mentioned two cases to
counsel in chambers involving the mandament van spolie and adjourned for them

8 See for example Herald Investments Share block (Pty) Ltd & others v Meer & others; Meer v Body Corporate of
Belmont Arcade & another 2010 (6) SA 599 (D) para 6.
9 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 262H-263I.

to prepare argument in the light of those cases. When they returned the following
day he ruled that the issues described above should be argued. Counsel for the
counter applicants confirmed this course of events. The parties found themselves
in a situation where they felt obliged to argue matters that formed no part of the
case. That may easily arise because of the relative positions of judge and counsel
or litigant. The latter may feel obliged to adopt the course indicated in order to
avoid displeasing the judge and possibly without adequate reflection on the
implications of what they are being told to do. For that reason judges must always
exercise extreme caution before suggesting that parties depart from the course that
they have chosen. That is particularly so in urgent matters where there is not
always sufficient time to think through the implications of the issues raised by the
judge. Gamble J obviously felt that counsel (and their clients) had acquiesced in
the course he suggested, but acquiescence is not consent and what was required
was a clear and unequivocal change in the entire approach to the case by the
counter applicants to which the City and Mrs Fischer needed to respond. That did
not occur.

[17] The result is that this appeal arises from a decision by the court below on
issues not identified by the parties as relevant to their dispute and without hearing
the evidence that they agreed was both relevant and determinative of the dispute.
Had it simply heard that evidence it would have been in a position to decide
whether the City‟s allegations were correct or whether the individual counter
applicants were truthful when they claimed to have been in occupation of homes
erected on the property before 7 and 8 January 2014. The hearing would have
taken place on 19 February 2014 and the following days and once those factual
issues had been determined the dispute would have been resolved. The probability
is that this would have occurred some time ago and there would have been no
need for this appeal. Indeed experience teaches one that in the course of the
hearing the true situation would probably have emerged fairly rapidly and the

parties might well have been able to resolve the matter without the need for a
judgment. One need only read the judgment of Howie J in Ntshwaqela,10 and the
subsequent judgment of Nicholas AJA in this Court,11 to see that this is likely to
be the case.

[18] Regrettably the learned judge in the court below ignored these salutary
rules. Without determining the factual dispute that lay at the heart of the counter
application, he granted the relief claimed by the counter applicants. This led to a
most unhappy situation. His order was inconsistent with the rule nisi granted by
one of his colleagues on the application by the City and Mrs Fischer, which
application was being dealt with separately. Confusion as to the respective parties‟
legal rights and obligations was thereby engendered. The proper resolution of the
dispute has thus been significantly delayed and we have been obliged to restore
the position as it stood when Zondi J made his order.

[19] The failure to explore the factual circumstances of the counter applicants
lead to the court below granting an order ostensibly relating to Mr Ramahlele and
46 others. This overlooked the fact that the list of counter applicants only
contained 42 names, leaving Mr Ramahlele on one side. In respect of three of
those there was no affidavit and no evidence at all. In respect of another three their
complaint related to an eviction in April 2013 the lawfulness of which was not in
issue. This led to the order in their favour being abandoned in a footnote in the
respondents‟ heads of argument. Even that abandonment was problematic as the
boyfriend of one of those who had not signed an affidavit had deposed to an
affidavit that encompassed both their interests. In respect of one counter applicant
his complaint was not that his house was demolished but that a shop and shed
adjacent to the house had been demolished. Two mentioned on the list did not

10 Ntshwaqela & others v Chairman, Western Cape Regional Services Council & others 1988 (3) SA 218 (C).
11 Administrator, Cape, & another v Ntshwaqela & others 1990 (1) SA 705 (A)

themselves depose to affidavits and other people deposed to affidavits on their
behalf. Of the remainder, one appeared to accept that he was trying to move onto
the property on 7 January 2014 and another said that she had moved in three days
before.

[20] If one eliminates the doubtful cases the rest of the counter applicants
claimed to have moved onto the property, built their shacks and lived in them
from various dates in 2013. They claimed that they were in possession of their
homes and had been dispossessed by the City‟s actions, basing their claims on the
mandament van spolie.12 This was deliberate and entirely appropriate, because, if
their factual allegations were correct, they had been despoiled. No doubt because
they did not need to do so, they placed no reliance on section 26(3) of the
Constitution or PIE, notwithstanding that they were represented by one of the
largest public interest law firms in this country, the experience of which in this
field is unrivalled.

[21] In this Court, the respondents did not rely on the first issue raised by
Gamble J, although one of the amici sought to address it. The second issue raised
the question of the relationship between PIE and the right of the lawful owner and
possessor of land under both s 25(1) of the Constitution and by virtue of the
mandament van spolie. There is a potential tension between the two, the resolution
of which is by no means easy. In addition it raised the question of how local
authorities may respond to conduct constituting a land invasion and the extent to

12 The Constitutional Court has authoritatively expounded the nature of the mandament and endorsed the judgments
of this Court as to its nature. Madlanga J in Ngukumba v Minister of Safety and Security (087/13) [2014] ZACC 14
para 10, said:
„The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the
possessor. It finds expression in the maxim spoliatus ante omnia restituendus est (the despoiled person must be
restored to possession before all else). The spoliation order is meant to prevent the taking of possession otherwise
than in accordance with the law. Its underlying philosophy is that no one should resort to self-help to obtain or
regain possession. The main purpose of the mandament van spolie is to preserve public order by restraining persons
from taking the law into their own hands and by inducing them to follow due process.‟ (Footnotes omitted.) See
also Tswelopele Non-Profit Organisation & others v City of Tshwane Metropolitan Municipality & others 2007 (6)
SA 511 (SCA); George Municipality v Vena & another 1989 (2) SA 263 (A) at 271H-272B.

which they or the police may intervene in such situations. Yet these issues were
resolved without having been addressed in the papers and without any factual
input as to the implications of a decision one way or the other from any party or an
amicus curiae. There are many bodies that would be affected by or interested in its
resolution and which would have been in a position to assist the court with
information and legal submissions. That is evidenced by the fact that in this Court
two bodies with conflicting interests and submissions intervened as amici, namely
Abahlali Basemjondolo Movement SA, which was assisted by SERI Law Clinic,
and the City of Johannesburg Metropolitan Municipality. Courts should not
resolve issues of such public importance without affording all interested parties
the opportunity to participate in the proceedings so as to ensure that the court is as
well-informed as possible about the implications of its decision.

[22] The court below appears to have been oblivious to these difficulties. It came
to its decision without referring to any of them. That decision, as is apparent from
the heads of argument furnished to us, was potentially far-reaching. The judge
upheld the counter application and granted final relief in substantially the terms
sought by the counter applicants. He decided that the dismantled structures were
occupied because:
„The fact that the structure had reached the stage of its completion indicates an intention on the
part of the builder to take up residency therein.‟
and
„If the structure is complete, the invasion of the piece of land in question has taken place,
occupation has occurred, and the provisions of PIE are applicable.‟
In other words the mere existence of the structure and the intention of the builder
to occupy it determines whether that person is an unlawful occupier and entitled to
the protection of PIE. Actual physical occupation becomes irrelevant. That is
inconsistent with the nature of the possession upon which the mandament van
spolie is based, which, in the case of immovable property, involves factual control

as well as the intention to derive some benefit from the land.13 The possession
must be both peaceful and undisturbed. A judgment of the full court, binding on
Gamble J, held that this meant physical possession that was sufficiently stable and
durable for the law to take cognizance of it.14 This was overlooked. The
conclusion reached was also inconsistent with the judgment of this Court in
Barnett,15 on the meaning of occupation for the purposes of PIE.

[23] A land invasion is itself an act of spoliation. The Constitutional Court has
recently reaffirmed that the remedy of the mandament van spolie supports the rule
of law by preventing self-help. A person whose property is being despoiled is
entitled in certain circumstances to resort to counter spoliation.16 If the issues in
this case were to be broadened, the counter application would have to be
investigated and that could only be investigated by hearing evidence on the
requests to the City by Mrs Fischer for assistance in regard to the squatting on her
property. Another issue central to the relief to be granted was whether Mrs Fischer
was a joint spoliator with the City in relation to any act of spoliation by the City.17
None of these issues had been canvassed in the affidavits before Gamble J,
because the counter application was based upon entirely different facts. The claim
by the counter applicants was that they had been in occupation of the demolished
structures on Mrs Fischer‟s property for a sufficient period prior to 7 and 8
January 2014 to render their possession of their sites peaceful and undisturbed so
as to entitle them to invoke the mandament van spolie.

[24] For all those reasons the course adopted in the court below was
impermissible. It should simply have heard the evidence tendered by the parties

13 Ntshwaqela & others v Chairman, Western Cape Regional Services Council & others 1988 (3) SA 218 (C) at
221E-F
14 Ness & another v Greef 1985 (4) SA 641 (C) at 647D-F.
15 Barnett & others v Minister of Land Affairs & others 2007 (6) SA 313 (SCA) para 38.
16 Yeko v Qana 1973 (4) SA 735 (A) at 739B-D; Ness & another v Greef, supra, at 647I-649H.
17 Administrator, Cape, & another v Ntshwaqela & others 1990 (1) SA 705 (A) at 718G-720B.

and determined the true facts. Had it done so there was no dispute between the
parties as to the legal position and appropriate relief could have been ordered
depending upon the court‟s factual findings. That would also have meant that the
learned judge would not have fallen into the trap, as he did, of making factual
findings adverse to the City on the affidavits as he did, in the alternative, by
finding, contrary to the City‟s evidence, that the demolished structures were in fact
the homes of the counter applicants. He would also not have had to concern
himself with the operation of the Plascon-Evans rule, which he appears to have
misconstrued in thinking that it operated against the City, which overlooked that
in relation to the counter application the City was the respondent and entitled to
the benefit of the rule.

[25] It is for these reasons that the order was granted.

__________________
L V THERON
JUDGE OF APPEAL

_________________
M J D WALLIS
JUDGE OF APPEAL

APPEARANCES
For Appellants:

A Katz SC with M Adhikari
Instructed by:
Fairbridges Inc, Cape Town
McIntyre & Van Der Post, Bloemfontein

Second Amicus Curiae:

C D A Loxton SC with A W Pullinger

For Respondents:

S Margadie

Instructed by:
Legal Resources Centre, Cape Town

Webbers Attorneys, Bloemfontein

First Amicus Curiae:

S Wilson with Z Makgalemele

Instructed by:
SERI Law Clinic, Johannesburg