Cape Town – The City and the SA Human Rights Commission (SAHRC) are squaring off in the Western Cape High Court because the commission wants the court to compel the City not to demolish illegally built structures, even beyond the National State of Disaster.
The case has been set down for several days.
On Tuesday, proceeds started with discussing an application brought by AfriForum to join the proceedings as a friend of the court. The EFF, who joined the proceeding on the side of SAHRC, challenged their application.
AfriForum’s legal representative Johan Hamman said: “The applicants have requested this court that counter spoliation (legal remedy which allows a person to forcibly retake possession) with regards to this situation be seized and be declared unconstitutional. If so, then the private property owners would also be deprived of counter spoliation the effects thereof will be dire.”
Presiding judges Shehnaz Meer and Rosheni Allie said AfriForum’s argument had already been covered in the City’s papers. AfriForum’s application was dismissed with cost.
The applicants – the South African Human Rights Commission SAHRC and several other intervening parties – want the urgent order to prohibit the City’s Anti-Land Invasion Unit (ALIU) from demolishing structures or evicting people to be made final, and to extend beyond the state of national disaster.
For the applicants, Advocate Norman Arendse for the applicants, told the court: “The question remains who decides whether these structures constitute a home or not and who determines whether they are occupied or not. We know from the City they only demolish structures illegally built or structures partially built. And we know from the evidence that it is common cause that there are no policies or by-laws that inform the ALIU to what constitutes a home.”
Arendse said there were non-binding by-laws the City was reliant on that offered a guideline for the ALIU.
“We know that if the ALIU gets it wrong they will be disciplined or fired. We also know that the ALIU is assisted and sometimes not. We don’t know much about the ALIU’s training as well, we just know from the City that there was a decision by the mayoral committee to establish the ALIU in 2008. This is all in the context of how they deal with the land invasion problem as a remedy for counter spoliation and stem this tide,” said Arendse.
The Legal Resource Centre, which brought the application, wants the court to declare the conduct of the City unlawful.
They also want the court to have the City’s ALIU be declared unconstitutional and unlawful.
The EFF’s Tshidiso Ramogale said: “We have been able together with the SAHRC and demonstrate that the police were present when demolitions were occurring in the City and did nothing.
“So if the court could ask the people whether the police stood by and watched their rights being violated they would say yes. The question is whether the relief should apply in every single instance.”
The matter resumes today.
Cape Argus