19 July 2022 – Western Cape High Court rules Qolani eviction unlawful and unconstitutional

For Immediate Release

19 July 2022

Western Cape High Court rules Qolani eviction unlawful and unconstitutional

Cape Town — The Western Cape High Court has delivered judgment in the matter of South African Human Rights Commission (SAHRC) and Others v The City of Cape Town and Others on Friday 15th July.  The Legal Resources Centre (LRC) represented the SAHRC, Housing Assembly and Bulelani Qolani in the matter, challenging the City of Cape Town’s eviction policy that violated the rights of evictees, and the unlawful conduct of the city’s Anti-Land Invasion Unit (ALIU). 

The brutal eviction of Bulelani Qolani, amid a global pandemic during which South Africa and the world enacted measures to protect citizens from the devastating effects of Covid-19, demonstrated a flagrant disregard for human rights by the city as an organ of state that, at the time, had continuously undermined efforts of national government to curb the spread of the virus, and equally, not protecting socio- economic rights of the poor in the Cape metropole. 

In the proceedings, the city raised two defences to its actions which were correctly dismissed by the high court.  First, the city argued that its actions were justified as it was acting under the authority of a court order. However, the court held that ‘neither such court order, nor any issued by any court in a constitutional democracy’ would justify the ‘brutal and inhumane conduct perpetrated on an unarmed person’.  

The City’s second defence concerned its reliance on counter spoliation – a legal defence that allows a person or entity to forcibly retake possession of property unlawfully taken from them. The city relied on a broader interpretation of this defence by arguing that homes which were ‘unoccupied’ can still not be possessed by those who live in them. It is this interpretation which the city believed empowered them to demolish homes of individuals on land owned by the city. The correct interpretation of when counter spoliation is permissible was central to the judgment.  

The court reaffirmed that when an interpretation of a common law rule, such as spoliation, undermined constitutional values such as the right to housing, the rule should be interpreted narrowly to attain compliance with our Constitution.  

The court found that whilst counter spoliation, if properly applied is not an invalid defence or unconstitutional, it unanimously held that the application of counter spoliation, “incorrectly interpreted and applied by the city, is inconsistent with the Constitution and invalid” insofar as it permits the eviction of persons and the demolition of their homes.  

The court therefore rightly dismissed the city’s broad application of counter spoliation insofar as it relates to land occupations and has, in essence, provided clarity on when and at what stage an unlawful occupier is in peaceful and undisturbed possession of property, rendering the defence of counter spoliation inoperable.  

Whilst we believe that the judgment does not go far enough, it is, on the whole, a positive development in the right to access to housing in South Africa as the high court found that a person entering land with the intention of erecting a structure and begins construction is in peaceful and undisturbed possession and counter spoliation in those circumstances is not available to both the state and private landowners. 

The LRC welcomes this court judgment which found that the city’s conduct in evicting our clients and demolishing their structures, was unlawful and unconstitutional. 

The LRC is grateful for the funding made by Legal Aid South Africa in this matter.