25 August 2020
Western Cape High Court grants interdict against City of Cape Town evictions
The Western Cape High Court handed down judgement today, in Part A of the application brought by the Legal Resource Centre (LRC) on behalf of the South African Human Rights Commission (SAHRC), the Housing Assembly and Bulelani Qolani. Judge Meer and Judge Allie, in unison, granted temporary interdicts against the City of
Cape Town and the South African Police Services (SAPS), prohibiting the City from conducting evictions and demolitions of occupied and unoccupied structures without judicial oversight; directing that the City’s officials act with respect for the dignity of evicted persons should a court grant them an eviction order and directing SAPS to act
in accordance with their constitutional mandate in that should they be present at an eviction, they have a duty protect the dignity of those evicted. The City has further been interdicted from adjudicating and awarding a tender for the demolition of “illegal and informal structures” in the Cape Metropole.
These proceedings were brought in the wake of several violent evictions and demolitions conducted by the City of Cape Town without an order of the court, which further resulted in widespread protests and violent confrontations between land occupiers and City officials. The City conceded in oral arguments that occupied structures attract the protection of the PIE Act and they are therefore required to obtain a court order in effect such an eviction. However, the City contended that they do not engage in such conduct, arguing that they had presented evidence before the Court that placed serious doubts as to whether they (the City) were evicting persons from occupied structures. Judge Meer did not agree with the City and held that “One need look no further than the undisputed image of Mr Qolani being dragged out of an occupied structure housing a bed to know that this is not so.” The judge went further to state that the judgements granted earlier this year in the Epolweni and Hangberg matters are also indicative of occupied structures being demolished.
The Justices further accepted our clients’ arguments on why judicial oversight is necessary for evictions from “unoccupied structures”, wherein we argued for a purposive interpretation of PIE Act and why the City’s reliance on the common law principle of counter-spoliation is unconstitutional. These submissions related the purpose of the PIE Act which sought to address apartheid-era evictions under the Prevention of Illegal Squatters Act, the human rights abuses occasioned by this Act and the authorisation of powers of summary demolitions without judicial oversight. We argued that should there be any doubt as to whether a structure has occupied a landowner must obtain a court order. Judge Meer agreed that such an interpretation promotes the bill of rights and “[…] ensures that the occupier’s constitutional rights to dignity, housing, safety and security of the person and life are protected.”
Regarding the conduct of ALIU, the Court found that the City had no substantive response to our arguments as well as those of the intervening applicants that, the ALIU determines whether a structure is “occupied or unoccupied” in an arbitrary, capricious and unfettered manner. Judge Meer added that “In fact, the evidence pertaining to Mr
Qolani’s demolition puts paid to the City’s submissions that the ALIU officials are able to discern occupied from unoccupied structures and demolish only the latter, given that his structure was clearly occupied, yet demolished”.
Judge Meer also held that even having regard of the City’s housing challenges and its fear of land incursions, the facts presented to the court do not detract from the Court’s view that judicial oversight is warranted. Judge Meer held the view that land incursions “do not occur because of court orders or judicial oversight. Land invasions are driven by homelessness, poverty and desperation.” More poignantly the Court said that “It is the poorest of the poor, the homeless, downtrodden and unemployed who seek refuge in informal settlements and erect structures to provide shelter. Whether such structures are complete, incomplete, or in the process of being built, they are capable of providing shelter from the elements especially during the winter seasons we are now experiencing. This is especially so during the catastrophic times we are forced to endure while the coronavirus pandemic rages. It is only apt for the courts to decide who is to be deprived of their shelter..” in the interim.
The LRC and our clients welcome this progressive judgment that seeks to protect the rights of homeless and landless people and seeks to uphold the rule of law. The City has, through Mayor Dan Plato, made several derogatory statements leveled at the SAHRC, and the LRC for its role in these proceedings. These statements were completely untrue and intended to question the integrity of a chapter 9 organization and human rights defenders. The City went further on a public campaign to vilify Mr. Qolani, publicly shaming him and placing the blame on him for their reprehensible behavior. The judgment and interim relief thus vindicate our clients and our role in bringing
this application for interim relief. It provides a temporary reprieve for people like Mr. Qolani who have been serial casualties in the City’s war against the poor.
Issued by the Legal Resources Centre
Tel: 068 584 2442 / Email: email@example.com