City will appeal dangerous High Court interdict preventing the protection of property from land invasion

25 August 2020

As Mayor, I have today instructed the City of Cape Town’s legal team to appeal the Western Cape High Court’s order granting an interdict removing the City’s right to protect property from land invasion.

The South African Human Rights Commission (SAHRC) and EFF have specifically asked the court for an interdict preventing landowners from exercising their right to remove empty, unoccupied structures as a means of protecting property from invasion.

This right – known as counter-spoliation – is a well-established common law principle. Court orders explicitly permit the City to conduct counter-spoliation to protect specific sites from invasion by preventing the erection of illegal, unoccupied structures.

Since 1 July, the City’s land protection efforts have led to the removal of over 55 000 illegal structures in around 30 different parts of the metro. There have been well over 100 separate land invasion incidents recorded.

The City’s actions are necessary and vital for upholding the Rule of Law and for protecting public land intended for services, housing, community facilities, schools and transport services. The City expects land invasion attempts to increase following this ruling.

The granting of an interdict preventing the City from conducting any counter-spoliation to protect public land without a court order goes far beyond what the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act allow.

It sets a dangerous precedent for all landowners. If left unchallenged, the interdict would make it almost impossible for landowners to protect their property from unlawful occupation and to prevent people from establishing homes, albeit unlawfully, on the property of others. The knock-on effect of the large-scale orchestrated land invasions we have seen is simply devastating for Cape Town, its communities, residents in general and the City.

The SAHRC’s main application, to be heard at their preference only in October 2020, specifically asks the Court to declare ‘counter-spoliation’ unlawful, and for the common law to be amended. The applicants further seek the voiding of all existing court orders permitting counter-spoliation.

The impact of this on all municipalities and our country as a whole will be substantial. All other metros, and indeed all landowners nationally, are affected.

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.

Practically, by the time such matters come to Court, the property in question would have been lost to illegal occupation. People who cannot afford to approach the courts would simply lose their land to illegal invasions in most instances.

If successful, the SAHRC’s main application – joined by the EFF – could open the floodgates on illegal land invasions, leading to a breakdown in law and order.

Public land earmarked for housing, healthcare, schools, transport, basic services would be permanently lost to unlawful land occupations with devastating consequences.

It could be that the extent of unlawful land occupation on public land would be so extensive to the point of undermining all the State’s housing plans and the Integrated Development Plan of this City as well as all municipalities for that matter as there would be no means of protecting any land from occupation.

The City will keep standing up for all law-abiding residents, first in appealing this interim relief, and second in continuing to oppose the SAHRC / EFF application overall. The City has stood firm against the illegal occupations over the last six weeks. We will not desert the residents of our City now and we will act to prevent land invasions until the ruling has been reviewed and sanity has prevailed.

Anonymous tip-offs:

Residents can give anonymous tip offs if they are aware of illegal activity that is taking place; that has happened or is still to happen. Please call 107 from a landline or 021 480 7700 for emergencies.

Issued by Media Office, City of Cape Town, 25 August 2020