The case revolves around the controversial eviction of Bulelani Qolani from his shack in June last year. File picture: African News Agency (ANA)
The case revolves around the controversial eviction of Bulelani Qolani from his shack in June last year. File picture: African News Agency (ANA)

Judgment reserved as the legal definition of a home gets debated during Cape land invasions case

By Mwangi Githahu Time of article published Nov 8, 2021

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Cape Town - The definition of what exactly constitutes a home was the main thread running through the case brought against the City by the South African Human Rights Commission (SAHRC) around the controversial eviction of Bulelani Qolani from his shack in June last year.

Advocates and judges debated the issue for more than six hours on Friday, and with Judge Vincent Saldanha having announced that judgment in the matter is reserved, the parties will have to wait a while longer before a definitive answer is provided.

The question of the City's Anti-Land Invasion Unit (ALIU) was another of the topics revisited during submissions made by the advocates for all the parties in the case challenging the eviction and demolition of structures by the City of Cape Town without a court order.

The ALIU’s forceful removal of Qolani from his shack while he was naked last year was previously found to be unlawful and unconstitutional by the high court, which also ruled that demolitions of homes cannot be carried out during the national lockdown.

Counsel for the Western Cape government Karrisha Pillay said that there were tests conducted to establish whether a structure was a home or not.

“If you go in and find a mattress or a blanket then it is obvious, it’s a home, but if a structure is there for 30 consecutive days with nobody inside then it should not be necessary to get a court order to demolish it as it is clearly vacant.”

This comment got Pillay into a debate with Judge Saldanha over whether common law required occupation of a structure before it was defined as a home and whether occupation equated possession.

Saldanha said: “When a person completes a structure and, given the mobility of people in this country, decides to attend a funeral in the Eastern Cape and ends up there for four or five weeks, how can the ALIU possibly engage with that person?”

SAHRC senior counsel advocate Norman Arendse stuck to his argument that the ALIU had no proper training in carrying out demolitions and evictions without a court order, but rather used their own discretion in assessing whether a home was occupied or not and what needed to be demolished.

The SAHRC case is that counter-spoliation is unconstitutional because it allows the City to circumvent the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act which prohibits unlawful evictions and provides for procedures to be followed to evict unlawful occupiers.

Alongside the SAHRC were the EFF and housing activist group Abahlali baseMjondolo, which joined the matter as friends of the court or amicus curiae.

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