City of Cape Town v JB and Others

Intimidation threats interdicted by high court on an interim basis after law enforcement officers of the City were threatened when they attempted to obtain personal information to issue enforcement notices.

“When comparing the harm that the City would endure if the interim order is not granted against the harm that the respondents would suffer if it is granted, in my view, the balance of convenience favours the granting of the order. It is not my duty to restrain the City, a tier of government, to exercise its power and function, unless it does so outside the bounds of the Constitution and the law or infringing the rights enshrined in the Constitution. The doctrine of separation of powers of the State enjoins me to exercise caution, respect and restraint.” [para 55]

Essence

Intimidation threats interdicted by high court after comparing harm endured by City and constitutional rights of individuals even thoseĀ  from other countries and undocumented refugees.

Decision

(21616/19) [2020] ZAWCHC 9 (17 February 2020)

Order:

See below

Judges

D Thulare AJ.

 

Reasons

“What is clear to me is that unless the court intervenes, the conduct of the respondents, which has no regard for authority, the rights of others and the law will continue indefinitely. The City has satisfied me of the facts necessary for its right to be protected in this application. After having considered the attitude and response of the City in respect of its obligations towards the rights of the respondents, as human beings, in my opinion, there is a need to set out terms which safeguard the respondents. The court needs to protect the City, but also to uphold the rights of the respondents [Webster v Mitchell 1948 (1) SA 1186 (W) at 1193]. The Bill of Rights in our Constitution enshrined the rights of all people in our country, which includes foreign nationals [section 7(1) of the Constitution]. The City, as a tier of government in our State, must respect, protect, promote and fulfill the rights in the Bill of Rights [section 7(2) of the Constitution]. A just and equitable order is called for.” [para 57]

Quotations from judgment

Note: Footnotes omitted and emphasis added

THE ORDER

[58] For these reasons I would make the following order:

1. A rule nisi is issued returnable on 17 March 2020 on the semi-urgent roll of the Court, in terms of which the first to fifth respondents and any other interested parties are called upon to give reasons why a final order should not be granted in the following terms:
1.1 That the first to fifth respondents be ordered to refrain from the following conduct in the sections of Longmarket and Burg Streets, including the sidewalks, and Greenmarket Square, Cape Town, as shown on Annexure “A” hereto (“the Affected Area”), and anywhere else in the City of Cape Town:
1.1.1 Intimidating, threatening, harassing or assaulting or in any way interfering with the applicant’s officials, or any persons acting on their behalf or involved with the law enforcement at the Affected Area; and/or
1.1.2 Damaging any of the applicant’s assets or facilities or properties; and/or
1.1.3.1 Preventing persons from entering or leaving the Affected Area; and/or
1.1.4 Contravening the applicant’s By law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007 published in the Province of Western Cape: Provincial Gazette No 6469, on 28 September 2007 and in particular, without derogating from the generality of the aforegoing:
1.1.4.1 Staying overnight and sleeping at any time;
1.1.4.2 Making fires;
1,1.4.3 Doing clothes washing;
1.1.4.4 Conducting personal hygiene regimes, including ablutions;
1.1.4.5 Urinating and defecating.
1.2 Occupy any structure, object, material or substance erected, deposited, packed or left on the streets, sidewalks and any public spaces of the affected area.
1.3 Further and/or alternative relief.
1.4 Costs against any respondent or other person who opposes this relief.

2. That the relief sought in paragraph 1.1 above operates as an interim interdict pending the final determination of this application, and only comes into operation on the day after the seven day period referred to in paragraph 4 below.

3. That the Sheriff of the Court, assisted by the SAPS if necessary, be authorised to take such steps as are necessary in the circumstances to enforce any order granted by this Court.

4. For a period of seven (7) court days after the date of this order:
4.1 the applicant shall make available a suitable venue at which the Department of Home Affairs (DHA) shall conduct and undertake such verification and other administrative processes that are required in relation to the first to fifth respondents in terms of Immigration Act 13 of 2002 and/or the Refugees Act 130 of 1998
4.2 the DHA shall for such purposes deploy officials to undertake such process;
4.3 the applicant shall provide transport to the first to fifth respondents from the Affected Area to the aforementioned venue, of as many persons per day as indicated by the DHA;
4.4 The applicant shall make available a suitable venue at which it shall process Respondents who are in distress and who attend in person to the Applicant to seek assistance and provide to the applicant all the necessary information to enable the applicant to decide on their position. The information may include but is not limited to:
4.1.1 personal particulars;
4.4.2 fingerprints and photographs:
4.4.3 sufficient particularity of facts, factors and circumstances from which a well-founded fear of persecution or a threat to their life, physical safety or freedom is based should they try return to their former habitual residents in the Republic.
4.5 the applicant shall provide transport to the first to fifth respondents from the Affected Area to the aforementioned venue, of as many persons per day as indicated by the applicant.

5. That this order be served on the first to fifth respondents by the Sheriff of the Court in the following manner:
5.1 Affixing at least ten (10) copies thereof to lampposts or other suitable structures in and around the Affected Area; such copies to also be provided in the languages of Lingala, Swahili and French;
5.2 Handing out at least fifty (50) copies thereof also in the languages referred to 5.1 to protestors found within the Affected Area, and in the event of persons refusing to accept same, leaving such copies in a box or suitable container at a prominent place in the Affected Area;
5.3 By reading, through a loud hailer, the terms of any interim order granted, at a prominent place in the Affected Area, such interim order to also be read in the languages of Lingala, Swahili and French.

6. That in the event of non-compliance with any provision(s) of this order, the applicant is granted leave to approach this Court on the same papers, duly supplemented, for an order of civil contempt and/or any further and appropriate relief that may be necessary.

7. No order is made against sixth and seventh respondent.

8. No costs order is made in respect of First, Second, Third, Fourth, and Fifth Respondents. The Applicant is ordered to pay the costs of the Sixth, Seventh and Eighth Respondents, such costs in respect of the Eighth Respondent to include the costs of two (2) Counsel.