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City of Cape Town files for leave to appeal to Supreme Court against land invasion interdict

The Executive Mayor of Cape Town Dan Plato. Picture: Tracey Adams/African News Agency (ANA)

The Executive Mayor of Cape Town Dan Plato. Picture: Tracey Adams/African News Agency (ANA)

Published Sep 1, 2020

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Cape Town - The Cape Town council has filed an application for leave to challenge a recent land invasion interdict granted against it by the Western Cape High Court at the Supreme Court of Appeal, Mayor Dan Plato said on Tuesday.

In a statement, Plato said he had instructed the council’s legal team to pursue an expedited appeal to the Supreme Court in Bloemfontein as the interdict would severely limit the city's ability to protect public land intended for services, housing, community facilities, schools and transport services from illegal invaders.

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Last week the mayor said the High Court ruling barring the city from removing invaders -- in a win for litigants the South African Human Rights Commission (SAHRC) and the militant opposition Economic Freedom Fighters -- set a dangerous legal precedent that would undermine property rights.

"The right to protect land from invasion would be severely limited by the interdict requiring the city to obtain a court order to demolish unoccupied structures, i.e. structures that do not qualify as homes," Plato said on Tuesday.

He said the council protected land from illegal occupation in a number of ways within the ambit of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act and counter-spoliation, a right that an owner has in terms of South African common law to re-take possession of a property that is in the process of being unlawfully taken away.

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"The (High) Court failed to consider properly, or at all, evidence put up by the city regarding the devastating social consequences of unchecked unlawful land occupations and why the remedy of counter-spoliation is necessary for the city to fulfil its constitutional obligations in respect of housing and service delivery," said Plato.

According to city council statistics, by August 20, Cape Town had recorded over 109 incidents of land invasions since July 11 in Kraaifontein, Delft, Khayelitsha, St Helena Bay and Dunoon, among other areas. Since July 11, the council has cleared 25,000 plots that had been illegally marked out for occupation.

Eighty-four people were arrested for public violence and 17 new court orders were obtained.

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Plato noted that the SAHRC's main application, to be heard only in October, specifically asks the court to declare counter-spoliation unlawful, and for the common law to be amended.

"The impact of this on all municipalities and our country as a whole will be devastating," he said.

"Court rolls will be flooded with applications by landowners, both private and public, seeking urgent and immediate determinations of whether or not a particular structure is occupied and subject to the PIE Act requirement of an eviction order."

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He said by the time such matters reached the court roll, the properties would most likely have been lost to illegal occupation and people who could not afford to approach the courts would lose their land.

African News Agency

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