Cape Town – The City of Cape Town says they are considering whether to appeal aspects of the Western Cape High court’s judgment which found against the municipality when it responded to land invasions in 2020.
The matter arose from the events of July 1, 2020 when metro police, members of the City Anti-Land Invasion Unit (Aliu) arrived at the Ethembeni informal settlement in Khayelitsha where they proceeded to Bulelani Qolani’s shack and dragged him out, naked and in full view of other residents. The City officials demolished his shack, without a court order.
The Western Cape High Court has now found that a series of demolitions and evictions that took place in 2020 by the City, including that of Qolani, were unlawful and unconstitutional.
It also found that the City's interpretation and application of counter-spoliation – the act of retaking property in the process of being taken away – was inconsistent with the Constitution and is invalid insofar as it permits demolitions of and evictions from any informal dwelling whether occupied or unoccupied at the time.
On Tuesday, the City said it had successfully opposed the legal bid by the South African Human Rights Commission (SAHRC) and EFF to strike down the existing legal right of landowners to protect property from unlawful occupation attempts without a court order.
“The City’s Anti-Land Invasion Unit and procurement of support services to protect land was also found to be lawful by the court,” the City said.
While the court upheld the lawfulness of counter-spoliation as a remedy, the City said it was considering its options relating to the finding that the City had not lawfully applied counter-spoliation in specific localised instances during the height of large-scale land invasion attempts, particularly during the hard lockdown in 2020.
“The City argued that counter-spoliation is both constitutional and vital for the protection of public land from mostly well-organised unlawful occupation attempts. The City conducted 993 anti-land invasion operations in 2020/21 during the height of the national lockdown and large-scale orchestrated illegal occupation attempts, which led to the formation of some 159 settlements, mostly on uninhabitable, unserviceable land, at great health and safety risks. Over the last five years, the City has responded to protect over 2 800 parcels of land,” the City said.
“It is not feasible to follow lengthy court processes before responding to co-ordinated invasions, which are often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections,” the City said.
The City said the court interprets counter-spoliation to be applicable in narrow time frames.
“This may render protection of immovable property via this method all but impossible in practice, especially in instances of well-organised illegal land invasions,” the City said.
Mayco member for safety and security JP Smith said the City was being briefed on the enforcement implications of the court ruling.
“The ruling now brings to an end the interdict which had severely impacted the City’s ability to protect land from organised unlawful occupation attempts via the use of counter-spoliation, which remains a vital tool in the protection of public land,” said Smith.
Cape Times