Cape Town - The Western Cape High Court has ruled that the eviction against Bulelani Qolani from his home in Khayelitsha in 2020 by the City of Cape Town’s Anti-Land Invasion Unit is unlawful and unconstitutional.
The demolition of homes belonging to, and the eviction of, other occupiers in Emploweni/Entabeni, Khayelitsha, Mfuleni and Hangberg have also been declared unlawful and unconstitutional.
In its defence during court proceedings, the City argued that it was not carrying out eviction, but was rather counter-spoliating, a legal defence that allows a person or entity to forcibly retake possession of property unlawfully taken from them.
The City relied on a broader interpretation of this defence by arguing that homes which were ‘unoccupied’ can still not be possessed by those who live in them.
It is this interpretation which the City believed empowered them to demolish homes of individuals on land owned by the City. The correct interpretation of when counter spoliation is permissible was central to the judgment.
The Legal Resources Centre (LRC) said the following in a statement: “While we believe that the judgment does not go far enough, it is, on the whole, a positive development in the right to access to housing in South Africa, as the high court found that a person entering land with the intention of erecting a structure and begins construction is in peaceful and undisturbed possession and counter-spoliation in those circumstances is not available to both the state and private landowners.”
Mayco member for safety and security JP Smith said: “The Safety and Security Directorate, including the Anti-Land Invasion Unit, is currently being briefed on the enforcement implications of the court ruling.
“The ruling now brings to an end the interdict which had severely impacted the city’s ability to protect land from organised unlawful occupation attempts via the use of counter-spoliation, which remains a vital tool in the protection of public land.”