In a judgment handed down on Tuesday this week, the Cape Town high court issued an interim interdict barring the City of Cape Town from evicting illegal land occupiers from their shacks – whether these are occupied or not – without first obtaining a court order.

This interim interdict will probably soon be replaced by a final declaratory order to the same effect. This order will remain in place for the duration of the Covid-19 lockdown, under which all evictions have been barred.

The City argued strongly against the interim interdict, saying that prior court orders are required only for evictions from shacks already occupied. It is only when shacks have already been turned into homes, it said, that unlawful occupiers fall within the ambit of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 (PIE). It is also only then that they become protected by Section 26 of the Constitution, which bars evictions from people’s homes without prior court orders.

The City also argued that the prohibition on evictions under lockdown regulations does not prevent municipalities from fulfilling their duty to prevent the illegal invasion of land. That duty demands swift action in removing shacks before they have been occupied.

Rapid demolition is particularly important given a recent and orchestrated upsurge in land invasions in the City – with 109 recorded since the start of July. These incursions are often large (involving hundreds of people) and well organised. Stands are quickly pegged off, shacks are speedily put together, and sometimes pre-built structures are brought in and dropped directly on to the land.

Scale of illegal settlement

The scale of illegal settlement is also considerable. On land owned by the Western Cape Nature Conservation Board in Mfuleni or Zwelethu, for example, the number of shacks went from zero on 17 June 2020 to about 3 000 by 15 July. It would have been higher still if the City’s Anti-Land Invasion Unit (ALIU) had not already removed some 1 400 unoccupied shacks.

Now, however, the City has been barred from removing unoccupied shacks without a prior court order. This remedy is meaningless, however, given the time needed to obtain such an order. By then, unlawful occupiers will have become entrenched on the invaded land and removing them will be impossible in practice.

The application for Tuesday’s court order was brought by the South African Human Rights Commission (HRC), acting together with a civil society organisation called the Housing Assembly and an unlawful occupier by the name of Bulelani Qolani. The Economic Freedom Fighters (EFF) intervened, to support their application, as an amicus curiae or friend of the court.

Public outrage

Mr Qolani had been evicted from the Ethembeni informal settlement in Khayelitsha by members of the ALIU early in July. According to his affidavit, when he saw the ALIU approaching, he went into his dwelling, undressed in preparation for a bath, and stood naked outside his shack asking to be allowed to finish his bath. When he went inside again, the ALIU dragged him naked from his home, pepper-sprayed him, and pinned him to the ground before demolishing his shack. Part of these events – the ALIU pulling his naked body from his shack – was captured on video and distributed across the world, eliciting public outrage.

The City has suspended the ALIU members involved and instituted disciplinary proceedings against them. It told the court that Mr Qolani’s dwelling was still unoccupied at the time of his eviction, as it had been erected only the day before. In addition, it had been Mr Qolani’s own choice to undress and stand naked in front of his shack. This was also in keeping with ‘the latest trend, whereby people undressed themselves’ so as to cause discomfort to the ALIU and prompt it to turn away.

The City warned too of the increasing violence that was being directed at the ALIU and the metro police by people resisting eviction. In a four-week period from mid-July, for instance, 46 law enforcement officers had been injured on duty and 17 official vehicles had been damaged.

According to the City, though it sympathises with the plight of the homeless, land invasions – especially when so frequent, large, and orchestrated – simply cannot be tolerated. These invasions threaten vital housing and infrastructure projects. They allow unlawful occupants to elbow aside law-abiding citizens waiting patiently on housing lists. They generate shack settlements so crowded – and often built on such unsuitable land – that services cannot easily be provided and water pollution is common. They also erode the value of land and deter the investments vital to growth and jobs.

‘We could lose every open patch of land’

According to mayor Dan Plato, the City has already lost some 360 hectares of land – the equivalent of 200 football fields – to land invasions over the last two years. Adds Mr Plato: ‘Should municipalities be prevented from protecting vacant land from illegal land invasions, we could lose every open patch of land. This would include privately-owned and state-owned land, along with public parks and sidewalks across the city.’

Moreover, those who lack the means to approach the courts will have no remedy at all – and will simply lose their land with no semblance of legality or justice. This will affect not only the 9.8 million people (almost all of them black) who own formal houses, but also the millions more with informal title to customary plots. People such as Limpopo farmer David Rakgase – who is finally to obtain ownership of the farm the state agreed to sell to him back in 2002 – will be particularly vulnerable.

The Cape Town high court failed to engage with any of these vital points. Instead, Judges Yasmin Meer and Rosheni Allie effectively reduced them to the ‘budgetary and many housing challenges the City faces’. The justices also said that considerations of this kind could not outweigh the rights of ‘the poor, the homeless, the downtrodden, and the unemployed to seek refuge in informal settlements and erect structures to provide them with shelter’.

The City would not be prejudiced, the judges went on, because it could always approach the courts for eviction orders on an urgent basis. However, this is profoundly short-sighted when the practical difficulties in obtaining such orders could trigger even more invasions and court rolls could soon be overflowing with eviction applications waiting to be heard.

Seemed to matter little

This prospect seemed to matter little to the high court, however. ‘Land invasions do not occur because of court orders or judicial oversights,’ it said. ‘Land invasions are driven by homelessness, poverty, and desperation.’

On the court’s approach, law and order – already under significant threat – are likely to crumble still further. Land and housing could then increasingly pass to those most able and willing to use violence to expand or retain their holdings. Ordinary people, and especially the poor, would suffer the most in this situation.

The court’s current interim order, even when replaced by the final declaratory order the HRC and EFF are seeking, will apply only for the duration of the lockdown. However, a permanent prohibition on evictions could in time be introduced, as recommended by the Presidential Advisory Panel on Land Reform and Agriculture in its July 2019 report.

The panel proposed ‘an end to the criminalisation of unlawful occupation by the poor’ and a ‘re-orientation’ of the police role in enforcing evictions. Since ‘unlawful occupation is not in and of itself a crime, authorities, including Anti-Land Invasion Units, need to protect the rights of vulnerably housed residents and occupiers’, it said. 

Though the panel did not spell this out, the implication is that land invasions would become lawful – and that the role of the City’s ALIU and other law-enforcement agencies would then be to protect land invaders, rather than evict them.

Repeated assurances

Both the high court ruling – and the risk of a permanent prohibition on the eviction of unlawful occupiers in the future – are entirely at odds with President Cyril Ramaphosa’s repeated assurances that ‘land grabs’ will not be tolerated.

In practice, land grabs have long been happening and will now be further fuelled. Many have already turned violent and the impetus to conflict is likely to grow.

It is extraordinary that the Cape Town high court could have been so blind to the practical and legal ramifications of its ruling.

This is sure to promote instability, encourage a free-for-all in which the most powerful are likely to prevail – and unravel the rule of law the Constitution is supposed to guarantee.

[Picture: falco from Pixabay]

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48 COMMENTS

  1. Thank you Dr Jeffrey.
    I suspect this is an orchestrated judgement. The Cape High court seems to be hellbent on issuing controversial decisions undermining law and order.
    I hope the judges houses and properties are invaded first as a lesson to them. Sorry to make such a statement.

    • Couldn’t agree more – i sincerely hope that would happen the whole thing stinks of a politics.Is this what is a case of the law siding with the unlawful – heaven help South Africa.Maybe we should get a mob of them pay them some cash to invade these judges properties. It seems as everything these days stinks of corruption.

  2. One of the most irrational and emotionally charged rulings to be made in a long time. By seemingly intending to help the poor and downtrodden the judges have impeded their life chances. Shortsighted in the extreme.

  3. Orchestrated judgement indeed . I know justice is blind but it is entirely inconceivable that the two judges are unaware of the implications of this ruling . Let us hope that an appeal succeeds !

  4. Nelson Mandela promised the ANC-led government would build five million houses in five years between 1994 and 1999 if they won the first election. I remember that because there was quite a discussion in the papers about it at the time, and at least one writer had pointed out the entire SA construction industry did not have the resources to do it. To date, the government has built around 1.1 million houses and most were done so badly by instant BEE builders who got contracts that fixing them would’ve cost R70 billion a few years ago, a large sum which the government still does not want to spend. There are millions of people living in shacks, many of whom have been waiting on housing lists for 20 years or more for the ANC to keep its promise. While some wait patiently and others engage in corruption so they can move ahead in the housing lists, there are more people who’ve had enough of waiting and are grabbing land on their own or as part of organised groups. The ANC know housing is a time bomb, but they’ve done little about it. What we’re seeing is part of how the rule of law and property owners’ rights are allowed to be undermined in order for the government to avoid having to deal with what it has done as well as what it hasn’t done. This court judgement is wrong in my opinion because it undermines the rule of law and property rights, but it is not the first time courts have done this and I hope it is reversed on appeal before things get even worse.

    • The judges are ‘woke’ by turning a blind eye to government’s failures and instead weakening the rule of law in an effort to compensate for government’s failures. Woe to South Africa once the Judiciary becomes ‘woke’.

      • I agree. I have been watching with great concern how courts have undermined the rights of property owners over the last 20 years. In one case from at most five years ago, the KZN High Court in Durban ruled that debts for municipal rates be attached to the property and the new owners of a house could be held liable for the unpaid rates and taxes of the previous owner. This is not a legally defensible verdict because debts may only be attached to legal persons and a house does not have juridic personality like a registered company be it private or public, or an adult human being. At the same time, the new owners of a property can not be held liable for the lousy debt collection of a municipality when they were not responsible for making those debts in the first place, but how many people have the resources to fight such stupidity all the way to the Constitutional Court? Sadly, this is just one example. There are many others, especially those which involve hundreds of people who’ve decided to illegally occupy a farm, where the property owner is prevented from evicting, never mind arresting the trespassers/squatters. Support for criminal acts undermines justice and rights of law abiding people. At some point, the stupidity, malice and fuzzy ideology behind such wrongful verdicts is bound to snowball into quite a faecal matter sandwich, and judges will be responsible for this.

      • It’s a pity we have to refer to them as judges, and the so called constitution could have been written on toilet paper. How far away being another Zimbabwe & Zambia where toilet paper is worth more than banknotes.

  5. Soon enough the wrong piece of land belonging to the wrong persons that fall into the growing ‘gatvol’ community will ignite the now rather short fuse in the powder keg and all of this will be pretty moot. The land invaders, the EFF, the courts and the judges, and those ‘leaders’ spoiling for a sustained violent confrontation of sorts, as well as your and my opinions on any of it. We will all be the fodder of the events so many have been wanting for 40 – 50 years – many politicians and other so called leaders included it would appear.

    When that is done and dusted, what is left, can weigh up the evil of apartheid against the evil of the ANC’s institutionalised racism, state capture, destruction of the economy, and the disappeared and captured billions that should have uplifted a country out of poverty and misery over the last 30 years as promised daily through their doublespeak, but didn’t. It has been abundantly clear where those public taxes go for quite some time now. We will also know which atrocity will be the more vicious in retrospect.

    Unfortunately this is the short term result we seem to be racing headlong towards.

  6. Once again, it starts with the incompetence of the ANC regime and its alliances which have stolen from and mismanaged municipalities all over the country creating unemployment and homelessness on a grand scale. This has resulted in desperate people trying to survive and falsely made to believe it has been caused by white people and Apartheid, increasing racism and other atrocities.
    It has also caused mass migration to the only decent and well managed province, the Western Cape, creating overpopulation in a region with limited habitable land and resources.
    This was purposely planned to make the DA seem unsuccessful and to overthrow it by creating chaos.
    Unless this regime is removed and its alliances prevented from having any kind of control, I see this situation getting out of control very quickly.

  7. All the above comments are correct, but I would like to suggest a way of fighting back – before employing anybody, we should ascertain that they do not live on occupied land, and we should require the same of anybody doing subcontract work for us. The invasion orchestrators use motivations such as employment opportunities (as well as freedom from backyard rent) to get people to buy “plots” from them, and hopefully the spreading of the word that there WON’T be employment will reduce the rush. A thought…

    • Yes, indeed, temporarily suspend all employment, casual, domestic, local business, of all those from informal settlements, tell them to go home and pass the message on that until such land grabs stop, there won’t be any work.

      • Well i agree and actually that has taken place to a degree where the govt. trade unions bargaining councils etc etc have popped up all demanding all sorts of rights for workers weather they do a proper days job or not.So there are some people who refuse to take on housemaids etc on a permanent basis & employ them iso monthly come in one day in the week & the rest is done by the families.This unfortunately has created a lot of unemployment for the poor.

    • It could work. Problem is, the vast majority of people out there only care about their interests and are often too lazy to sweep and mop their own floors. If they weren’t, this country could be a different place within 30 days.

  8. Land Grabs do not only occur to Eastern Cape but also here in Kwazulu Natal where it is particularly rife on the farms of Mangete.The sporadic land grabs have decimated the agricultural farms that once thrived there. All efforts made to get a resolve/stop illegal occupation to the Saps and the nearby Sherrif’s office/Courts end in frustration.Despite having a court order against illegal occupiers, the local Sherrif’s office,Police, Courts and the Municipality keep the title deed holders going from pillar to post.This is the south Africa we live in now.
    I presume it will only be a matter of time before this becomes the norm for many title deed holders who live in South Africa.

  9. Brain, it’s not billions anymore, the figure has gone to over a trillion and growing daily. I would advise Cp city to take a page of advice from zuma and the anc goverment, give the high court and their ruling a fat middle one, same as they did when ordered to take basheer into custody. The pig stood smiling next to his relative at the Durban convention and noting was done to either of them. Do not worry, time will tell and for both of them that could be quite near. In a tv interview on one of the morning programs the country’s chief judge proclaimed that no corruption was present, nore would be allowed under his watch. Total correct statement. The system is so putrified that corruption can and will not try to rectify it. Viva zim! viva SA!

  10. Does anyone still believe that our justice system is independent of the ANC mindset? Surely not! All of the rights and values expected of a liberal democracy and rational, independent judiciary are being rapidly violated under Ramaphosa’s corrupt rule.

    • No, it seems not. The ANC mindset is the woke mindset where everything that is wrong with society is the fault of somebody else, i.e. the city of Capetown, definitely never the real perpetrators, i.e. the people who have more children than they can successfully launch into life and the government which is supposed to look after the burgeoning population, and they should be made to pay for it.

  11. I don’t pretend to be a lawyer (Heaven forfend!), but surely taking another person’s property is THEFT? I know that’s not important in this kleptocratic ANC government, but if theft is a crime, and one of the principles of law is that a criminal should not be allowed to profit from his crime, then maybe the City could prosecute the occupier and take its land back? If the legal system will not allow such a prosecution, then it’s yet another clear indication that SA is no longer a ‘proper’ country, with a rule of law and stuff!
    Look at what has happened in the USA, in New York where no bail is needed (unless you k*ll someone), or in Los Angeles, where the police will not handle any crime with a value of less than a thousand dollars. In those places, it seems like crime triumphs.

  12. The ANC & EFF is so corrupt , they steel our taxes , they steel our land , they steel our freedom, what is next.
    I am not very happy about this.

  13. Reading all of the comments above, I agree with all the commentators, however, what I also notice is that most are staring themselves blind against this one specific issue – the illegal occupation of land – whether such land belongs to the city of Cape Town or private owners.

    Looking at the bigger picture here, folks, you should see the intent of the court here. After the ANC brings into law their “expropriation without compensation” bill, eventually nobody will own any land. So does it really make a difference whether they allow people to occupy someone else’s land now or later? And no, I’m not blowing this out of proportion, go read the proposed law carefully. When that proposal comes into law, nobody will be entitled to own anything – not land, not buildings, not vehicles, not even the clothes on your back will be yours, everything will belong to the state.

    One of the first steps in bringing a country under communist rule is to nationalise all private property – that means expropriate it without compensating the owner of the property title. Sure, they won’t nationalise everything in one big fell swoop, but within 12 – 18 months, nobody will have any private ownership of anything that has significance or value.

    The next step will be to approach the occupant of that property and inform them that they must pay rent to the government for occupying what in effect is government property. If the occupant also happens to be the former owner, then you’ll be “renting” your property from the government. If the occupant is an illegal land grabber or rent paying tenant, they will just start paying their rent to the government instead of to the former owner.

    It will be up to the government’s discretion who they will force to pay rent and who will be allowed to occupy government land without paying rent. Slowly but surely, those able to afford paying will dwindle in numbers and eventually everyone will live like squatters.

    At the time of expropriating your property, if you still have a mortgage on it, you will be forced to continue paying off your mortgage as well as paying rent to the government, which will include the normal rates & taxes.

  14. Who are the judges ? Their judgement is so illogical , one wonders if they pocketed some money from the ANC or EFF.

    • Can’t agree more, a fish rots from the head down. The judiciary in this country can only rule on evidence , doesn’t matter how good or bad, so their ruling is also good or bad. Don’t trust anybody anymore, the last 30 yrs at least has proved it. The Rivonia trial has set the wheel of injustice in motion.Interpret that as you wish.

  15. I was under the impression that Chief Justice Moegoeng Moegoeeng (sorry for miss spelling his Honour’s name) said a short while ago, that there “WILL BE NO LAND GRABS” as he is also a farmer with title deeds to his farms. Why is this Chief Justice now so silent?

  16. This is a sign of Pavlov’s rule of conditioning….the more the Western Cape build houses, the more people from the Eastern Cape arrives here….and of late from Leshoto, Zimbabawe etc. No sane person wants to deny any person a place called HOME , but housing development must be preceded by proper infrastructure development …roads, sanitation, water, storm drainage, etc etc. The court ruling in this instance, therefore, fall short of proper insight on the whole of the problem and immense challenges.
    QUO VADIS ??

  17. We all know that election date is round the corner!!!
    This is exactly why the ANC & EFF with the assistance of these 2 judges want to win back their votes!!
    Question how many of these illegal land occupiers are from SA?
    The reason for the WC being invaded as instructed by the aforementioned is because it is the only successful province in the whole of SA under DA ruling.
    It’s obvious that they’ll need to cause total instability within the WC borders, which will have a profound and disastrous outcome for ALL CITIZENS OF THE WESTERN CAPE

  18. We have a tribal government who rules by decree in the sense that they can withhold essential things and then grant them again. Take social grants. We have a burgeoning black population that is undereducated. They generate the problem of producing more like them, without needing to produce anything useful, or be engaged in uplifting themselves – they simply get a grant. The ANC don’t want educated people who will challenge them. More children that get more grants when they have children in their teens, means more support for the ANC handout – ie the grants.
    You can forget any rational discussion, there is none that will change the ANC mindset. The dramatic increase in the povos will only strengthen the ANC’s hand. The chiefs will always have everything, the vassals nothing. Nepotism and cronyism and corruption are not bad notions in the mindset of these ANC chiefs or their subjects.
    There is no chance of reversing this trend, the uneducated population is increasing too fast. The whites are the political scapegoats we know, and when they are all gone, it won’t matter anyway because the blacks in the blue light brigade (ie the chiefs) will be doing what generations of black tribal chiefs have done – ruling by decree. This will be as acceptable as the air we breathe. If you want something different, go somewhere else.
    If you think the ANC could ever govern properly take one look at how they handled C19. There is only absurd reasoning, by people who themselves are uneducated and uninterested in playing at ground level. For them this is power and the way to show it – and then garner support by throwing out crumbs. It is feudal at best, communist at worst. CR is a figurehead with no power to challenge his motley and avaricious crew. When he goes, the fall will be headlong. Gird your loins and landowners, oil your guns.

    • “If you want something different, go somewhere else.”

      Absolutely, but maybe the somewhere else is just a change in designation. How about minorities legally seceding from a South Africa [mis]governed by the ANC?
      Check the ULA website for details.

  19. The cultural mindset of members of the ANC does not include the creation of anything new. They only deal with what is in existence, while it exists. Should it ever be in need of repair, repair too is not in their mindset so it is just abandoned. The consequences of this mindset for our beloved country are all around us.

  20. I totally agree. How on earth can those judges be so unaware of the
    Consequences of their ruling? It’s unbelievable. Cape Town not appeal
    To the High Court? Surely there is funding behind these organized land invasions? Can the funds not be traced?

  21. I tend to think there is method behind this – it’s the beginning of EWC in practice. Events of the past 10 days in SA have made me realise that in effect a certain gentleman with a name similar to that of the great icon of 1990 (but of a totally different character) is already ruling SA …

  22. This article and all the comments are chilling to the bone! The ‘government’ promises land and houses in thrir election manifestoes. But the uneducated cannot understand from whence this policy will be funded. Now we know, we always had a sad idea, hoped to be incorrect but now we know we are the funders of this communist program. I just don’t understand why the entire country cannot stand with CofCT in this appeal. HOW can we stand back and watch our lives implode. Please, advise us how we can help make a difference. We all have so much to lose.

  23. Chilling Article and too many truths filtering through in the comments. The greatest pity is that this site generally preached to the converted, and unless and until individuals actually rise up and confront the issues head-on, little is likely to change for the better. “If you want for something else, go to a different place” is a telling but heartful suggestion.

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