SCA holds that municipalities cannot demolish without a court order

15 July 2024 

On 10 July 2024, the Supreme Court of Appeal (SCA) issued its judgment in the matter of City of Cape of Town v South African Human Rights Commission and Others. The Human Rights Commission was represented by the Legal Resources Centre. The matter, which was brought by the South African Human Rights Commission (SAHRC) against the City of Cape Town, follows the demolitions at the Ethembeni informal settlement in Khayelitsha, Cape Town in July 2020. Armed metro police officers and members of the City of Cape Town’s Anti-Land Invasion Unit (ALIU), accompanied by private contractors acting on the instruction of the City, violently removed Mr. Bulelani Qolani from his shack, while he was naked and in full view of surrounding residents and proceeded to demolish his shack without a court order. This occurred during the COVID-19 pandemic national shutdown when a nationwide moratorium on evictions was in place.

The case concerns the use  of counter‑spoliation, which is a remedy in common law to take back property that has been unlawfully taken from an owner. In this case, the City of Cape Town used counter-spoliation to demolish without going to court first to obtain a court order. The Court ruled that the remedy of counter-spoliation is not available to a property owner, in this case the municipality, under circumstances where possession of the property has already been established by a homeless person. This means that municipalities and property owners must obtain authorisation from a court either in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), mandament van spolie, an interdict or another available remedy, prior to demolishing a structure constructed to be a home regardless of the phase of construction. The SCA specified that they could only act without court authorisation before the person has begun “putting up poles, lines, corrugated iron sheets, or any similar structure with or without furniture”. 

Abahlali baseMjondolo, represented by SERI,  were admitted as a friend of the court - amicus curiae - in the matter. Abahlali’s submission was informed by their own experience of the eThekwini ALIU. Abahlali and SERI welcome the judgment as an important affirmation of the rights of all people to be protected from unlawful evictions, and we commend the Human Rights Commission represented by the Legal Resources Centre for bringing the case. 

Abahlali’s submissions focused on when municipalities can use the remedy of counter-spoliation, submitting that the City’s use  is at odds with its duty under Section 26 of the Constitution, to act reasonably to progressively give effect to the right of access to adequate housing. The City cannot invoke this remedy after a homeless person has commenced the construction of their informal structure because “any act of dispossession from that stage would not be a defence against spoliation but itself amount to an act of spoliation.” The City must seek relief through the courts to ensure judicial oversight and prevent junior officials from acting on their own discretion against marginalised people.

The judgment also noted the brutalising conduct of the ALIU and other law enforcement officers: “the conduct of the City’s personnel did not only constitute a violation of the occupants’ property rights in and to their belongings, but also disrespectful and demeaning.” The judgment finds that the City must take responsibility for training and equipping the ALIU personnel with sensitivity training “to recognise that people’s rights should be respected and they should not be abused during removals”. 

SERI executive director Nomzamo Zondo commented, “I am certain that the judgment’s emphasis on the behaviour of anti-land invasion units, outlawing the confiscation of possessions, and restating the obligation to treat people with dignity will significantly protect the landless.”

Abahlali general secretary Thapelo Mohapi commented, “Abahlali welcomes the SCA judgment as a huge victory for the poor and marginalised in South Africa who have been unlawfully evicted by the ALIU rendering thousands homeless. Many people have lost their lives at the hands of the ALIU, including Samuel Hloele and Nkosinathi Mngomezulu, who we lost to ALIU violent conduct during illegal evictions.”

Issued by SERI, 15 July 2024