NEWS & ANALYSIS

Illegal land invasions: Cape Town files leave to appeal – Dan Plato

Mayor says Court failed to consider evidence regarding consequences

City files leave to appeal to keep protecting public land from illegal invasion

1 September 2020

The City of Cape Town has filed its application for leave to appeal a Western Cape High Court interdict which in effect would severely limit the City’s ability to protect public land from illegal invasion.

As Mayor I have instructed our legal team to pursue an expedited appeal to the Supreme Court of Appeal based on the imminent and irreparable harm that would arise should the City be prevented from upholding the Rule of Law and protecting public land intended for services, housing, community facilities, schools and transport services.

The City protects land from illegal occupation in a number of ways. This is done within the ambit of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act and the common law remedy of counter-spoliation.

Counter-spoliation is a right that an owner has in terms of South African common law to re-take possession of a property that is in the process of being unlawfully taken away. 

The right to counter-spoliate is vital to the City’s land protection efforts as time is often of the essence in removing unoccupied structures during land invasions without a court order. For evictions and the demolition of occupied structures, court orders are obtained in line with the law.

The right to protect land from invasion would be severely limited by the interdict requiring the City to obtain a court order to demolish unoccupied structures, i.e. structures that do not qualify as homes.

In so doing, the Court failed to consider properly, or at all, evidence put up by the City regarding the devastating social consequences of unchecked unlawful land occupations and why the remedy of counter-spoliation is necessary for the City to fulfil its constitutional obligations in respect of housing and service delivery.

The City argues that the Court erred in granting this relief given that the remedy of counter-spoliation remains lawful and available to all other landowners, both private and public.

The Constitutional Court has found that the State as the owner of property has the same rights as any other property owner.

It further cannot be said that the City’s counter-spoliation actions are arbitrary given how vital land protection efforts are in giving effect to a number of other socio-economic rights that the City is constitutionally mandated to realise.

The South African Human Rights Commission’s (SAHRC) main application, to be heard at their preference only in October 2020, specifically asks the Court to declare counter-spoliation unlawful, and for the common law to be amended.

The impact of this on all municipalities and our country as a whole will be devastating.

Court rolls will be flooded with applications by landowners, both private and public, seeking urgent and immediate determinations of whether or not a particular structure is occupied and subject to the PIE Act requirement of an eviction order.

Practically, by the time such matters come to Court, the property in question would have been lost to illegal occupation. People who cannot afford to approach the courts would simply lose their land to illegal invasions in most instances.

The City has stood firm against highly organized land invasion attempts at over 30 hotspots in the metro over the last two months.

We will continue to stand up for the residents of our City and we will act to prevent land invasions until the ruling has been reviewed.

Anonymous tip-offs:

Residents can give anonymous tip offs if they are aware of illegal activity that is taking place; that has happened or is still to happen. Please call 107 from a landline or 021 480 7700 for emergencies.

Issued by Greg Wagner, Spokesperson to the Executive Mayor, 1 September 2020