From 11 October to 14 October 2021, the Western Cape High Court heard arguments in a matter between the South Africa Human Rights Commission v The City of Cape Town. The matter arises from the disturbing events of 1 July 2020 when 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.
SERI represents Abahlali baseMjondolo who are amicus curiae in the case 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 that of the anti-land invasion units in eThekwini and Johannesburg.
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 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 parties will return to court on 5 November 2021 to resume the hearings.
Read more about the case here.