Counter spoliation matter back in court again
4 November 2021
Tomorrow, 5 November 2021, the hearing in case, No: 8631/2020 in the consideration of the common law right of counter-spoliation by landowners as a legitimate means to repel land invasions, launched as part B of an application by the South African Human Rights Commission (SAHRC) and the Economic Freedom Fighters (EFF) litigation against the City of Cape Town (CoCT), will once again recommence.
Argument in the matter, which was heard in the Western Cape High Court before Justices Saldanha, Slingers and Dolamo between 11 – 14 October 2021, after being postponed in March 2021, was not concluded within the set down period agreed and counsel for the Western Cape Government (WCG) have not concluded making our submissions.
The WCG, which intervened in the matter, denies there is any need to amend the common law of counter-spoliation, as the applicants seek, and assert that it is as a constitutional means for landowners to prevent unlawful land invasions without first having to approach a court to do so. Ironically, the delays that have been occasioned in the hearing of this matter already (and having had to start it de novo once already due to no fault of the parties) are an example of the time and cost that can be occasioned when a party is obligated to approach our courts for relief.
Mandated on behalf of the provincial cabinet, Western Cape Minister of Human Settlements, Tertuis Simmers, said: “It’s unfortunate that we’ve had all these delays and postponements, but in such an important case, it is critical to ensure we are given the space to be heard, even if this means incurring the added cost and time of additional days in court.
We maintain that there is no need to amend the common law of counter spoliation, particularly since on a proper interpretation it recognises the need and benefit of enabling owners to act immediately in order to retake possession of unlawfully seized property in a way that is both reasonable and constitutional.”
Issued by Marcellino Martin, Spokesperson for Minister Tertuis Simmers, 4 November 2021
