Bid to strike down critical property protection rights fails in the High Court

19 July 2022   

The court dismissed arguments by the SAHRC and EFF that legal protection begins the moment a person enters a property and begins putting up a structure, and that a court order should first be obtained before a landowner can act to stop an invasion of property in real-time.

The applicants had also wanted the well-established legal right – known as ‘counter-spoliation’ – declared unlawful. This would have removed the existing ability of owners to lawfully retake possession of seized property, without approaching a court first.             

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.

It is not feasible to follow lengthy court processes before responding to coordinated invasions, which are often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections. In these instances, fully-built structures can even be dropped onto sites and furniture thrown in to create the impression of a long- established ‘dwelling’.

While the court upheld the lawfulness of counter-spoliation as a remedy, the City is considering its options relating to the finding by the court that the City had not lawfully applied counter-spoliation in specific localised instances during the height of large-scale orchestrated land invasion attempts, particularly during the hard lockdown in 2020.

In a lengthy judgment exploring complex issues, the court interprets counter-spoliation – the act of retaking property in the process of being taken away – to be applicable in extremely narrow timeframes, equivalent to near instantaneous. This may render protection of immovable property via this method all but impossible in practise, especially in instances of well-organised illegal land invasions.

‘The development goals of our city depend on upholding property rights and protecting the interests of future generations of Capetonians who will require land for schools, hospitals, housing, transport infrastructure, and community facilities. We commit to doing everything possible to protect public land from what are often large-scale, orchestrated illegal occupation attempts. No matter the scale of the challenge, we must also ensure land protection operations occur constitutionally with due care for individual circumstances of the vulnerable, the rights of property owners, and the interests of all residents,’ said Cape Town Executive Mayor Geordin Hill-Lewis.

‘The Safety & Security Directorate, including the Anti-Land Invasion Unit, is currently 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 Alderman JP Smith, Mayco member for Safety and Security. 

Issued by Media Office, City of Cape Town, 19 July 2022