|The applicants are a group of homeless people who made a home for themselves on a traffic island under R31 highway bridge on End Street, between Durban and Meikle Streets, in the business district of the City of Johannesburg Metropolitan Municipality (“JMPD”).
According to the applicants, they lived under the bridge for a significant period of time, which the majority of the group occupied the space for a period of two years at least. The applicants are destitute, earning an income ranging between R350 and R1000 a month, from collecting recyclable material. Accordingly, they could not afford rental for accommodation.
The applicants alleged the property to have comprised of personal effects including food, mattresses, blankets, clothing, money, identity documents and other important documents and various materials which they used to build a makeshift shelter under the bridge at night.
The applicants’ property was removed during ‘a clean-up’ operation of the area conducted under the City’s by-laws.An operation that was prompted by numerous complaints lodged from numerous businesses trading around the traffic island, and members of the public. The issue being the use of pavements and designated parking for public vehicles being occupied by the homeless, public defecation and urination on pavements, excessive rubbish and waste, public abuse of illicit drugs and the disposal of used syringes, theft, robberies and related crimes in the area.
This is an appeal against the judgment of Gauteng Local Division of the High Court, Johannesburg, which dismissed the application for the return of the applicants’ personal belongings and materials, alternatively to be provided with similar material possessions, confiscated by officials of the (“JMPD”) from the traffic island, and ancillary relief.
The City of Johannesburg Metropolitan Municipality Public Health By-Laws (Published under Notice No. 830 in Gauteng Provincial Gazette Extraordinary No 179 dated 21 May 2004).
|Reference was made to section 1 of the PIE act,to establish whether the applicants’ homes could be considered as buildings and thereby justifying the remedy sought in respect of eviction without a valid order of the court. The court held that no demolition of buildings or structures occurred, or eviction for that matter, as it should be established whether parking for motor vehicles is equivalent to ‘vacant land’ or a ‘public park’ and whether habitually sleeping on it would constitute ‘occupation’ for purposes of the PIE Act.
The court further held that the view by the court a quo, in respect of the applicants not being able to invoke mandament van spolie was endorsed. With regards to Tswelopele Non-Profit Organisation & others v City Tshwane Metropolitan Municipality & Others, which in essence explains the purpose of mandament, being to restore the physical control and enjoyment of specified property – not its reconstructed equivalent.
However, what is clear in these circumstances, is that the confiscation and destruction of the applicants’ property was a patent, arbitrary deprivation thereof and a breach of their rights to privacy enshrined in section 14(c) of the Constitution. This caused a great amount of distress and as such was a result a breach to their right to inherent dignity and respect.
Accordingly, the conduct of the respondents should be declared inconsistent with the Constitution.[As such, the applicants were entitled to an appropriate relief. Reference was made to the case of Fose v Minister of Safety and Security being that appropriate relief would be relief that is required to protect and enforce the Constitution.
In light of the above circumstances, opting for claiming for damages would cost the applicants even more, as it would be difficult to place a reliable value on the property, as the items were extensively used with no commercial value, but happened to be valuable to the applicants. In light of the facts, the court held that, the amount of R1500 should be awarded to each applicant, as the applicants are willing to accept same as redress for the wrong they have suffered.
Removing and destroying property, comprising of personal effects and various materials used to erect overnight shelter, belonging to the homeless, does not necessarily constitute eviction, but was a breach to their right to dignity, privacy, and not to be deprived of their property instead.
Written by Puseletso Radebe and supervised by Omphile Boikanyo