Cape Town - Following the historic high court judgment which declared a series of evictions carried out by the City in 2020 unlawful and unconstitutional, the City said it would now approach each case of unlawful occupation on its land on its merits.
This as the City said it was considering whether to appeal aspects of the court’s interpretation of counter-spoliation affording landowners only the narrowest of windows to protect property.
On Friday the high court found that while counter-spoliation, if properly applied, was not an invalid defence or unconstitutional, it unanimously held that the application of counter-spoliation, “incorrectly interpreted and applied by the City, was inconsistent with the Constitution and invalid” insofar as it permits the eviction of persons and the demolition of their homes.
However, the City in its defence argued that it was not carrying out evictions but was rather counter-spoliating (a legal defence that allows a person or entity to forcibly retake possession of property unlawfully taken from them).
The City and the province contended that they were entitled to rely on counter-spoliation to seize and demolish structures without a court order when the PIE Act does not apply and where the requirements for counter-spoliation are met.
The City has reiterated that it does not manage the privately-owned property and does not evict persons from the property without a court order.
It further said it had no right to enter private land that may have been illegally occupied to conduct any assessments and that the unlawful occupation of City-owned land, either by way of orchestrated invasions or on an ad-hoc basis, continued to be assessed by the City officials on a case-by-case basis.
It said this was not only for housing benefits but also by the Social Development officials for assistance in that respect as well.
“The determination of whether the City has to offer emergency accommodation to any person being evicted from land is determined on a case-by-case basis as it depends on an assessment of all the factors that gave rise to the occupation and eviction, including the individual needs and an assessment by the court of what is just and equitable.
“This judgment does not change this position,” the City said.
The SA Human Rights Commission’s Chris Nissen said the focus should be on the housing deficit in the City and not the targeting of people living in informal settlements.
“We are not delighted that the court ruled against the City of Cape Town, because as a sphere of government it should not have been in court with the Human Rights Commission, which is the last resort. But under the then leadership, the City decided to go to court, not only for this matter but also for the Strandfontein matter. And this makes it the only city that has taken the Human Rights Commission to Court,” he said.
Nissen said the Constitution was clear, that the spheres of government must co-operate with the Human Rights Commission.
“We condemn any illegal occupation of land, whether public or private. But as the Human Rights Commission we must stand up and ensure that we protect the poor and the vulnerable.”
The Legal Resources Centre said the judgment was a positive development in the right to access housing in South Africa, as the high court found that a person entering the land to erect a structure who begins construction is in peaceful and undisturbed possession and counter spoliation in those circumstances was not available to either the State or private landowners.
Covid informal settlement leader Luthando Mcuntula said there was a need for constructive engagements instead of using violence to address the housing problems in the City.
“During the lockdown, when people lost their employment and when landlords demanded payment, people out of desperation decided to invade the land. Until the City recognises that there is a great need for housing it will continue to waste millions of rand on litigation at the expense of the taxpayers,” he said.