SAHRC, EFF and LRC want the common law right to protect property declared unlawful
24 July 2020
The City of Cape Town is ready to oppose the South African Human Rights Commission’s (SAHRC) court application for the common law right to protect property from land invasion to be declared unlawful.
A timeline for the hearing of the matter was determined in the Western Cape High Court today, 24 July 2020. Although the SAHRC initially approached the High Court on an urgent basis, they have now refused to agree to the City’s proposal that the central relief be heard on 20 August 2020.
Instead, the SAHRC wishes to wait a full month to argue only for an interdict preventing the City from conducting anti-land invasion operations. The commission further insists that the full matter only then be heard three months later on their preferred date of 6 October 2020. Some media have misreported this matter as a simple interdict against evictions. This is incorrect.
The SAHRC is specifically asking the courts for an interdict preventing landowners from removing empty, unoccupied structures as a means of protecting property from invasion.
Further, the SAHRC is asking the court to declare unlawful the well-established common law principle of ‘counter-spoliation’, which permits landowners to protect their property against the erection of illegal structures.
The application also seeks the voiding of all existing court orders explicitly permitting the City to protect specific sites from illegal invasion using counter-spoliation.
If the applicants obtain this relief, it would be almost impossible for landowners to protect their property from unlawful occupation and to prevent people from establishing homes, albeit unlawfully, on the property of others.
This will set a dangerous precedent for all landowners and goes far beyond what the Constitution and Prevention of Illegal Evictions (PIE) Act allow.
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 interim relief sought would effectively interdict the City from taking any steps to prevent unlawful land occupations on City land for an indefinite period - probably months, if not years.
If successful, the SAHRC’s application – joined by the EFF and Legal Resources Centre – will open the floodgates on illegal land invasions, leading to a breakdown in law and order.
City land earmarked for housing, schools and basic services would be permanently lost to unlawful land occupations with devastating consequences.
It could be that the extent of unlawful land occupation on City land would be so extensive to the point of undermining all the City's housing plans, as there would be no means of protecting any public land from occupation.
It is clear that many thousands of law-abiding residents are silently bearing the severe impact of land invasions due to the unlawful actions of a relatively small group of people who occupy land illegally.
While we hold Chapter 9 institutions in the highest regard, we urge the SAHRC to consider the implications, unintended consequences and negative impact of their application on Cape Town and South Africa as a whole.
My message to the overwhelming majority of law-abiding residents is this: Rest assured that the City will keep standing up for you.
Issued Greg Wagner, Spokesperson to the Executive Mayor, 24 July 2020
