1 December 2020
Judges unable to reach consensus in City of Cape Town eviction case; matter to be heard once more before three new judges
Cape Town — The Legal Resources Centre, along with other parties involved in the SAHRC and Others v City of Cape Town and Others matter, has been informed by the Western Cape High Court that the honourable judges who presided over the matter could not reach consensus on a decision. Consequently, the matter must be heard afresh before a full bench of three judges to make a determination on the declaratory relief sought.
Part B of the matter was set down for hearing on 24 – 27 November 2020 following its postponement in October to allow for the application brought by Afriforum as Amicus Curiae. The Economic Freedom Fighters opposed this application and the court had to first deliberate on this Afriforum’s admission as Amicus. On reading the application and hearing the arguments advanced in its support, the court found that no “novel” argument was raised in the application and all arguments by Afriforum were already covered by all other parties to the proceedings. Afriforum’s application was therefore dismissed with costs.
The case then proceeded with the applicants collectively arguing for declaratory relief against the principle of counter-spoliation and for it to be declared unconstitutional within the context of housing rights and legal protections against evictions without judicial oversight. This is premised on the fact that the principle is inconsistent with the purposive interpretation of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act and the Constitution. Abahlali baseMjondolo, who were admitted as Amicus to the proceedings, raised novel issues around the strategies of how counter-spoliation does not necessarily respond to the control of land occupation. More importantly, the slow provision of housing by the City to indigent communities will directly result in the slow-paced provision of housing which may take up to 70 years to fulfill. Abahlali also advanced suggestions on how the City can take measures to protect its property against land occupation by erecting physical structures such as fencing and lighting. The thread of argument around possession was clear on the applicants’ and Amicus’ side – they submit that that intention to possess is sufficient for showing the intention to occupy the space for the purposes of housing – for that reason counter-spoliation is unlawful.
The City opposed these arguments. They contend that the common law principle passes constitutional muster and abolishment would cause serious lawlessness. Further, and central to their argument is that in counter-spoliating, they do not evict and demolish structures that are occupied and the structures in question do not constitute a “home” for the purposes of the PIE Act. They essentially assert the right to counter-spoliate in instances of land occupations. The Western Cape Government supports this notion, submitting that it would be extreme to abolish counter-spoliation. They conceded that there are instances in its application where there could be an abuse of power in effecting counter-spoliation operations but this could be cured by adopting some guidelines or measures to temper the excessive use of force and abuse of power. The Applicants reject that guidelines will, by their very nature, cure the unlawfulness of counter-spoliation in the context of legislative protections against arbitrary evictions from, and demolition of housing structures on, unlawfully occupied land without a court order.
Issued by the Legal Resources Centre
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