Cape Town takes on all comers over landowners’ rights

A legal skirmish about the right of landowners to evict illegal occupiers without a court order has shone a harsh spotlight on SA’s housing backlog.

The South African Human Rights Commission (HRC), the EFF and the City of Cape Town slugged it out in the Cape Town high court this week, 15 months after Khayelitsha resident Bulelani Qolani was filmed being hauled naked from his home by city officials, causing an outcry.

At the heart of the case is the legal remedy known as counter-spoliation, which allows a person to forcibly retake possession of property unlawfully taken from them.

The HRC and EFF want the court to declare counter-spoliation unconstitutional and unlawful. HRC commissioner Chris Nissen says in an affidavit that the city has no right to demolish structures without a court order, even if it believes they are unoccupied. 

Instead, Nissen says, a court must first determine if the occupation is unlawful and whether “eviction is equitable”.  

The EFF’s Viwe Sigenu applied to join the court action on behalf of residents in the Cape Flats community of Zwelethu, where, he said, a land invasion happened in March 2020.

“Their occupation came as a result of being evicted from their homes. The residents were backroom dwellers and they rented shacks in townships in and around Mfuleni,” Sigenu said. “As a result of the national lockdown, many lost their sources of income.”

• R 75.5m - The amount the Western Cape government  has spent preventing land grabs in the past six months 

• 231,654 - The number of people on the housing list in the province's non-metro areas.

• 335,778 - The number of people on the housing list in the Cape Town metro

—  IN NUMBERS

Riana Pretorius, the city's head of informal settlements and backyarders, says in an affidavit that the council's anti-land invasion unit was established to “respond to ongoing risk being faced by the city of its land being unlawfully occupied”.

“Courts have consistently set their face against providing assistance to unlawful land occupiers, for good reason. No person, whether an individual or an organ of state, may take the law into his or her own hands,” says Pretorius.

Muneera Allie, of the provincial housing department, said the Western Cape housing demand database shows more than 231,000 people are waiting for homes in non-metro areas and more than 335,000 in the metro.

Edward Molopi, a research and advocacy officer at the Socio-Economic Rights Institute of SA, said the growing number of informal settlements “is demonstrative of the state’s failure and the market’s inability to provide poor households with formal affordable accommodation options in well-located areas”. 

“This reality is further entrenched by the eviction, frequently unlawful, of poor residents from their homes either by government or by private interests with the support of government.”

After a week of arguments, the high court case was postponed on Friday to November 5.