Cape Town - The rights of evicted people and legitimate means to repel land invasions dominated the recommencing of an application by the South African Human Rights Commission (SAHRC) and the EFF against the City in the Western Cape High Court.
The court is once again hearing the arguments on the principle of counter-spoliation – a legal remedy which allows a person to forcibly re-take possession of property unlawfully taken from them – following the inability of the two previous judges to reach consensus in the matter last year.
In their application the SAHRC and the EFF want counter-spoliation to be declared illegal, the City’s Anti-Land Invasion Unit (ALIU) to be declared unlawful and for landowners, in this case the City, to first obtain court orders before evicting people occupying their land.
The case involves the City’s controversial eviction of Bulelani Qolani from his Khayelitsha shack in June last year and is being heard by three new judges – Justices Vincent Saldanha, Mokgoatji Dolamo and Hayley Maud Slingers.
The new judges called on the parties to file updated heads of arguments, and requested the participation of national government in the hearing which was slotted for two days.
The judges and advocate Norman Arendse SC, appearing for the SAHRC under instruction of the Legal Resource Council, spent almost six hours discussing the common law right of counter-spoliation by landowners as a legitimate means to repel land invasions.
Arendse’s main argument was that demolition of structures on unoccupied land should only be supervised by the courts as provided for in the Constitution.
He argued that the City should have applied the Prevention of Illegal Eviction and Occupation of Land Act which he argued was designed to protect the most vulnerable in society and to ensure that human rights such as dignity and equality are respected.
Arendse said instead the City employed the services of the ALIU to deal with Qolani’s eviction.
Arendse also questioned the powers that the ALIU have to carry out demolitions and evictions without proper court supervision.
He said that on several occasions, members of the ALIU had been subject to disciplinary proceedings and that even in this case, the members of the ALIU who carried out the demolition had been subject to an independent inquiry for their treatment of Qolani.
“To date, there has been no update regarding this inquiry or if any action has been taken against those members of the ALIU,” Arendse said.
Judge Saldanha wanted to know why feedback on this disciplinary process had not been released, yet the incident happened more than six months ago.
Commenting before the hearing began, Human Settlements MEC Tertuis Simmers, said: “Although we are disappointed that a brand new hearing of the matter has been required, we remain confident in our argument that the common law remedy of counter-spoliation is both constitutional and necessary.”
The case continues today.
Cape Argus