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[LITIGATION UPDATE] The Western Cape High Court finds the City of Cape Town's conduct and eviction of Mr Qolani unlawful (19 July 2022).

On Friday, 15 July 2022, the Western Cape High Court handed down its judgment in a matter between the South Africa Human Rights Commission v The City of Cape Town, finding that the City of Cape Town's conduct was both unlawful and unconstitutional. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit (ALIU) 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 represented Abahlali baseMjondolo who acted as amicus curiae in the matter.

The matter was brought by the SAHRC in a two-part application against a series of unlawful evictions and demolitions carried out in Cape Town in 2020. Part A sought to interdict the City of Cape Town from demolishing structures without a court order. This was granted. Part B of the application sought 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 sought an order declaring the existence of the ALIU to be unlawful, unconstitutional, and invalid. 

Abahlali submitted that the City is not 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 submitted 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 submitted 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 Western Cape High Court has found that a series of demolitions and evictions that took place in 2020 by the City of Cape Town, including that of Mr Qolani in Khayelitsha, were unlawful and unconstitutional. It also found that the City's interpretation and application of counter-spoliation is inconsistent with the Constitution and is invalid insofar as it permits demolitions of and evictions from any informal dwelling whether occupied or unoccupied at the time of the eviction or demolition.

The Court accepted Abahlali's submissions that the right to counter-spoliate is significantly narrower than the state and property owners have traditionally accepted which is that the requirement of possession need only be "peaceful and undisturbed" as interpreted in Yeko v Qana. This finding explicitly overrules the broader interpretation in Ness v Greef, which is the case often cited to argue that shackdwellers must have "durable and stable" occupation before a court order is required to remove them. This means that once a person is present on land with the intent to construct a shack, and manifests that intent by beginning to erect a structure, they are in possession and a court order is required to remove them. 

As noted by the Court,

"When an interpretation and/or approach to a common law remedy could negatively affect and/or undermine constitutional values, a narrow interpretation of that common law remedy is to be favoured. As argued by amicus, when there is any ambiguity arising from interpreting the common law, then regard must be had to the Constitution as an interpretative guide, and the interpretation which more closely reflects the spirit, purport and objectives of the Constitution."

Regarding the lawfulness of the ALIU, the court declared that the City's ALIU is not per se unlawful provided that, in discharging its mandate to guard the City's land against unlawful invasions, it acts lawfully.

Read more about the case here.