Abahlali BaseMjondolo - Amicus Curiae - South African Human Rights Commission - Housing Assembly - Bulelani Qolani - City of Cape Town - Western Cape High Court - Anti-Land Invasion Unit -
SERI represents Abahlali baseMjondolo who are amicus curiae in the case of South African Human Rights Commission v The City of Cape Town. On 1 July 2020, armed Metro police, members of the City Anti-Land Invasion Unit accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order.
The SAHRC brought a two-part application against the unlawful eviction and demolition. Part A seeks to interdict the City of Cape Town from demolishing structures without a court order. Part B seeks to review and set aside the conduct of the ALIU or the decision by the City to instruct them to demolish structures without court orders. It also seeks an order declaring the existence of the ALIU to be unlawful, unconstitutional, and invalid.
Abahlali has joined the proceedings as amicus curiae because of their extensive experience with illegal actions performed by ALIU in Durban. Abahlali seeks to show the court the ALIU's track record in terms of its conduct and to demonstrate how its conduct in Cape Town is not meaningfully different to the anti-land invasion units in eThekwini and Johannesburg.
Abahlali submits that the City is not is entitled to resort to the common law remedy of counter-spoliation which it uses to summarily demolish and remove structures from its land that it decides are not “occupied” as “homes”. Abahlali also submits that the routine and inflexible use of the counter-spoliation remedy is, in any event, at odds with the City’s duty, under section 26 (2) of the Constitution, to act reasonably to progressively give effect to the rights of poor and homeless people to access adequate housing. Abahlali submits that this "entails a duty to engage new occupants of its land openly and compassionately in an effort to 'resolve the difficulty on a case-by-case basis after an investigation of their circumstances'".
The matter was set for hearing on the 6th and 7th of October but was postponed on account of AfriForum joining in the application as amicus and filing their papers late. The hearing was later held from 24 November to 27 November 2020 in front of two sitting judges. On 25 - 26 March 2021 the parties returned to court to re-argue that case in front of the full bench of the Western Cape High Court due to the two judges being unable to reach a unanimous decision. On 11 - 14 October 2021 the parties returned to court to conclude the hearing in front of the full bench of the Western Cape High Court.
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