Very narrow window for counter-spoliation


A tent city on open ground located on the corner of Gabriel and Bardia roads in Plumstead. The City has drafted just under 600 eviction requests for invaded sites and identified tent camps. PHOTO: Nettalie Viljoen

Ward councilors across the city have been urged to encourage their constituents to immediately report any new signs of vagrancy or the establishment of new structures following a ruling by the Western Cape High Court last week.

On Tuesday July 19, the High Court ruled that a number of demolitions carried out by Cape Town City at the height of the Covid-19 lockdown were unlawful.

Judges Vincent Saldanha, Mokgoatji Dolamo, and Hayley Slingers declared the City’s behavior in enforcing the evictions “unlawful” and “unconstitutional.”

The judges said the City wrongly applied the “counter-spoliation” remedy when it demolished shacks and evicted families from informal settlements during the lockdown.

Putting a positive spin on the judgment, the city responded that it had “succeeded in opposing the legal attempt by the South African Human Rights Commission (SAHRC) and the Economic Freedom Fighters (EFF) to nullify the existing legal right of landowners (counter-degradation) to protect property against attempted unlawful occupation without a court order”.

“The court rejected SAHRC’s and EFF’s arguments that legal protection begins the moment a person enters a property and begins to put up a structure, and that a court order must first be obtained before a landowner can act to stop a property invasion into real estate. -time,” said a press release issued by the City.

In the judgment, however, the judges said that counter-spoliation could only be used in limited circumstances and under tight deadlines. For example, the judges said the counter-mess would apply if stakes were simply driven into the ground, not when the final wall or gate was put in place.

In a message to ward councilors emailed last week, JP Smith, Mayco’s member for safety and security, wrote that the court’s decision was problematic in that it seeks to limit counter-spoliation to an “instantaneous” action which, he said, is undefined.

“So it’s important, now more than ever, to report vagrancy and the setting up of new tents/structures,” Smith said, adding that the city is considering appealing aspects of the counter-spoliation interpretation. the tribunal.

In an interview with message from the peopleSmith warned that aspects of the judgment could set a dangerous precedent for all landowners.

“These relate specifically to the court interpreting counter-spoliation – the act of repossessing property being removed – as applicable within extremely short timeframes, amounting to near instantaneous. This can make protecting real property via this method virtually impossible in practice, especially in cases of well-organized illegal land invasions,” Smith said.

He says the court’s interpretation is that ‘peaceful and undisturbed possession’ occurs the instant a structure is erected by the person attempting to illegally occupy land.

“If a landowner doesn’t take back the property at that exact moment, they will likely lose it to illegal occupation and will have to seek a court order through lengthy processes,” he said.

With the lawsuit now over, City law enforcement personnel can resume the fight against the spoliation and prevent the construction of new structures, but only if they act quickly.

Smith said the city is currently reviewing the relevant legislation and how to apply law enforcement interventions following the High Court ruling.

“‘The Directorate of Safety and Security, including the Ground Invasion Counter Unit, is currently being briefed on the enforcement implications of the tribunal’s decision.’

According to the city, it carried out 993 anti-land invasion operations in 2020/21 at the height of the nationwide lockdown and large-scale orchestrated illegal occupation attempts, which the city says led to the formation of some 159 settlements. . Asked if the city would prioritize dealing with settlements deemed to represent “large-scale” occupation in the coming months, Smith said all illegally occupied areas are being assessed and that each The way forward would be decided on merit, informed by a range of considerations.

“The City is continuing its assessments of all newly created illegally occupied areas and will decide on possible ways to move forward with respect to each area that is on City-owned land. Private landowners should reflect on their own actions,” Smith said.

In the message to ward councilors, Smith shared that existing structures still require an eviction order (the Unlawful Evictions and Unlawful Occupation of Land Prevention Act).

“The City Safety and Security Branch drafted just under 600 eviction requests for identified invaded sites and tent camps which we turned over to Legal Services,” Smith wrote.


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