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

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

Judges Vincent Saldanha, Mokgoatji Dolamo and Hayley Slingers declared the City’s conduct while carrying out the evictions as “unlawful” and “unconstitutional”.

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

Putting a positive spin on the judgement, the City responded that it had “successfully opposed the legal bid by the South African Human Rights Commission (SAHRC) and Economic Freedom Fighters (EFF) to strike down the existing legal right of landowners (counter-spoilation) to protect property from unlawful occupation attempts without a court order”.

“The court dismissed arguments by the SAHRC and EFF that legal protection begins the moment a person enters a property and begins putting up a structure, and that a court order should first be obtained before a landowner can act to stop an invasion of property in real-time,” said a media statement released by the City.

In the judgment, however, the judges said counter-spoliation could only be used in limited circumstances and within narrow timeframes. For example, the judges said counter-spoilation would apply if pegs were just being put in the ground, not when the last wall or door was being put in.

In a message to ward councillors sent last week via email, JP Smith, Mayco member for safety and security, wrote that the court ruling was problematic in that it seeks to limit counter-spoliation to “instant” action which, he said, is not defined.

“It is therefore important, now more than ever before, to report vagrancy and new tents/structures being put up,” said Smith, adding that the City was considering whether to appeal aspects of the court’s interpretation of counter-spoliation.

In an interview with People’s Post , Smith warned that aspects of the judgment could set a dangerous precedent for all landowners.

“These specifically relate to the court interpreting counter-spoliation – the act of retaking property in the process of being taken away – as applicable in extremely narrow timeframes, equivalent to near instantaneous. This may render protection of immovable property via this method all but impossible in practice, especially in instances of well-organised illegal land invasions,” said Smith.

He says the court’s interpretation is that “peaceful and undisturbed possession” happens the instant a structure is erected by the person attempting to unlawfully occupy land.

“If a landowner does not retake the property in that very instant, they will likely lose it to unlawful occupation and need to apply for a court order via lengthy processes,” he said.

With the court case now having concluded, the City’s enforcement staff can resume counter-spoliation and prevent new structures from being built, but only if they act swiftly.

Smith said the City is currently in the process of looking at relevant legislation and how to apply enforcement interventions following the High Court ruling.

“‘The Safety and Security Directorate, including the Anti-Land Invasion Unit, is currently being briefed on the enforcement implications of the court ruling.”

According to the City, it conducted 993 anti-land invasion operations in 2020/21 during the height of the national lockdown and large-scale orchestrated illegal occupation attempts, which, the City said, led to the formation of some 159 settlements. Asked if the City would be prioritising addressing the settlements considered to represent “large-scale” occupation in the upcoming months, Smith said all unlawfully occupied areas are under assessment and each way forward would be decided on merit, informed by a range of considerations.

“The City continues its assessments of all newly established unlawfully occupied areas and will decide on feasible ways forward as it pertains to each area that is on City-owned land. Private landowners would need to consider their own actions,” said Smith.

In the message sent to ward councillors, Smith shared that existing structures still required an eviction order (the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act).

“The City’s Safety and Security Directorate has drafted just less than 600 eviction applications for identified invaded sites and tented camps which we have handed to Legal Services,” Smith wrote.

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