The case was triggered by the eviction of Enkanini informal resident Bulelani Qolani, who was dragged naked from his shack.
The City is weighing its options after the Supreme Court of Appeal (SCA) dismissed its appeal with costs, while confirming that the metro had a narrow window in which it was legally permissible to protect its unoccupied land against unlawful invasions.
The City had sought to challenge a Western Cape High Court ruling that it had incorrectly applied its common law defence of counter-spoliation as unlawful and unconstitutional.
Counter-spoliation is the immediate action to physically prevent land invasions and where occupation had not stabilised and “before the person has put up any poles, lines, corrugated iron sheets, or any similar structure with or without furniture which point to effective physical control of the property occupied”.
The SCA confirmed that the City was able to counter-spoliate when homeless people invaded its unoccupied land, but the municipality was required to exercise its right to do so immediately, in which counter-spoliation was legally permissible.
SCA Judge Baratang Mocumie concurred with the high court that the problem was with the application of the principles of counter-spoliation by the City in the context of land incursions/ invasions.
“The appropriateness of the time within which to counter- spoliate, is left wholly within the discretion of the City’s employees and agents. This is often capricious and arbitrary and cannot be legally countenanced.”
“The City has a housing backlog which it must reduce in the next 70 years with a limited budget and an overwhelming demand for housing.
That, however, cannot justify the City not satisfying the requirements of counter-spoliation if it wants to invoke same.
In the event that the City does not act instanter, as in this instance, it should approach the courts to obtain remedies legally available to it,” said the judge.
The case is a sequel of an intervention by the South African Human Rights Commission (SAHRC) at the height of the Covid-19 pandemic in 2020 when, on behalf of homeless people, it launched an urgent interlocutory relief in two parts.
In the first part, the high court interdicted and restrained the City from evicting persons from and demolishing any informal dwelling, hut, shack, tent or similar structure while the state of disaster remained in place.
In the second part, the high court declared the various demolitions of structures and effective eviction of persons affected thereby during the period April to July 2020, unlawful and unconstitutional.
The case was triggered by the eviction of Enkanini informal resident Bulelani Qolani, who was dragged naked from his shack. The incident captured on camera also raised questions about the training of the City’s law enforcement officers.
In her judgment Judge Mocumie said the City “must invest in training and equipping the Anti-Land Invasion Unit (ALIU) and its relevant personnel with sensitivity training, to recognise that people’s rights should be respected and they should not be abused during removals”.
Commenting on the SCA’s outcome of this week, the EFF, cited as a respondent in the matter, said: “The land remains central to the freedom of our people, and the EFF will always champion its return to its rightful owners.”
For another respondent in the matter, Housing Assembly, Kashiefa Achmat said: “It is a good judgment because if one thinks of the Bulelani Qolani incident where he was forcefully removed from his structure ... they strip you of your dignity with the way things are being done.
When Law Enforcement and the ALIU come to these places, they just do it in a way that is inhumane. This judgment should stop them from doing things in such an inhumane way.”
The City said they were concerned about the court’s interpretation of the narrow time frame and that the “time frame close to instant may render protection of immovable property via this method all but impossible in practice, especially in instances of well-organised illegal land invasions”.
Mayor Geordin Hill-Lewis said: “It is important for the state, and any landowner, to be able to protect property from organised invasion in real-time, and for this reason we welcome the SCA upholding counter-spoliation as a legal right, even as we still assess various aspects of this complex judgment.”
“In the end, the City must protect municipal land which is planned for valuable purposes to serve future generations of Capetonians. We want Cape Town to be a better place for all, even when it is double the size, and we will never stop advocating for enabling the state to protect land while also upholding the dignity of the vulnerable,” said Hill-Lewis.
The SAHRC had not responded to enquiries by deadline on Thursday.
Cape Times