Landowners should be permitted to immediately retake their land from occupiers through counter spoliation
8 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), concluded on Friday, 5 November 2021 in the Western Cape High Court.
Mandated on behalf of the provincial cabinet, Western Cape Minister of Human Settlements, Tertuis Simmers, said: “This has been a rigorous process for our Counsel, but the strong and diligent legal argument placed before the court fills me with confidence that the court will see the importance of this remedy, which will continue to empower landowners to immediately retake their land from occupiers. It was important for the court to clearly hear that this remedy is assisting in ensuring that as the State, we’re able to deliver services, which includes the provision of equitable housing opportunities.”
This matter, first commenced in late November 2020 before Judges Meer and Allie, who at the end of a 4-day hearing advised they could not reach an agreement on the terms of the judgement. Instead of appointing a new third judge to break that "deadlock", Judge President Hlophe decided to appoint an entirely new bench to hear the matter from the start again.
On 25 March 2021, the new hearing, which was set down for two days commenced before Justices Saldanha, Slingers and Dolamo. Not all Counsel had the opportunity to make their oral submissions in that period and the matter was postponed to between 11 – 14 October 2021. Another postponement to 5 November 2021 was required and argument before the court concluded late on Friday afternoon.
Simmers added: “All the delays, which were not caused by any of the parties, have been rather regrettable, but ironically do show what length of time can transpire before relief is granted by a court in a contestation over rights in land. This matter has been running for quite some time and we do not have a ruling as yet.
These delays, which have become the norm in all but the most urgent of matters is another reason why both public and private landowners seek to continue to rely on the common law remedy of counter-spoliation, i.e to immediately retake possession of land that they own which is being invaded, without the need to follow a prior expensive and often lengthy court process confirming their rights to do so.
We have full faith in the judicial system and that the court will support our stance that the common law remedy of counter- spoliation, the principles of which have been enunciated by our courts over many years, remains available to landowners within our Constitutional framework.
It remains our view that when applied reasonably and correctly, by any owner of land, so as to immediately wrest possession away from an unlawful invasion, counter-spoliation is both a reasonable and constitutional means by which ownership rights can best be protected.”
Judgement in the matter has been reserved.
Issued by Marcellino Martin, Spokesperson for Minister Tertuis Simmers, 8 November 2021
