Municipalities have been urged to take note of a landmark ruling by the Supreme Court of Appeal (SCA) on the process of lawfully evicting illegal occupants from municipal-owned land.
This after the City of Cape Town application, to overturn a Western Cape High Court ruling that it had incorrectly applied its common law defence of counter-spoliation during an eviction in the Western Cape in 2020, was dismissed by the higher court.
Counter-spoliation means the immediate action to physically prevent land invasions and where occupation had not stabilised.
The SCA judgment said that counter-spoliation is only permissible where peaceful and undisturbed possession of the property has not yet been acquired.
“Once a spoliator has acquired possession of the property and the breach of the peace no longer exists, counter-spoliation is no longer permissible.”
The SCA said that pictures of the eviction process showed existing and complete structures being torn down.
“It leaves no doubt that the City did not act instantly in the captured circumstances. The occupants of the structures were removed from already erected structures.”
Legal expert Mpumelelo Zikalala said that the City of Cape Town failed to follow the law.
“I understand why the SCA dismissed the application. The City had to remove the illegal occupants as soon as possible and they didn’t do that.
“When structures are already erected the City will need to get a court order to remove the occupants and they need to also find alternative accommodation.
The important thing is that municipalities must understand the law before enforcing them.”
Zakhele Ndlovu, a political science lecturer at the University of KwaZulu-Natal, said that he was not surprised by the SCA judgment.
“The issue is that the City of Cape Town waited too long to evict the people. The City needed to act immediately and remove the illegal occupants and structures before they were put up.
“They allowed the occupants to settle and the law is that if they have to evict them they need to find alternative accommodation. There was also a video which showed one of the occupants being removed, while naked, which was inhumane and this all worked against the City. Municipalities need to know that they must act quickly if they need to get rid of illegal occupants and they have to do it in a humane way.”
Dr Bongekile Yvonne Charlotte Mvuyana, a senior lecturer at Mangosuthu University of Technology’s (MUT) department of public administration and economics, said that the judgment imposed by the Western Cape court requires all cities to reconsider how to deal with the increasing demand for housing which results in land invasion.
“The application of counter-spoliation when homeless people invade the municipality’s unoccupied land is critical. Municipalities are expected to satisfy the requirements of counter-spoliation to avoid litigation by communities.
“It should be noted that cities are considered better places to live, because they provide people with access to education, health services, as well as water, electricity, and sanitation.”
Mvuyana said that as more people flocked to cities, these cities must develop methods to deal with urban change in the emerging world.
Shack dweller movement Abahlali baseMjondolo said it was admitted as a friend of the court (amicus curiae) in the matter.
“We welcome the SCA judgment as a huge victory for the poor and marginalised,” it added.
The Mercury