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.
On 15 July 2022, The Western Cape High Court handed down its order in which it 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.
The City of Cape Town appealed the order in the Supreme Court of Appeal. The matter was heard on 7 May 2024. On 10 July 2024, the Supreme Court of Appeal (SCA) issued its judgment in the matter and found that the remedy of counter-spoliation is not available to a property owner, in this case the municipality, under circumstances where possession of the property has already been established by a homeless person. This means that municipalities and property owners must obtain authorisation from a court either in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), mandament van spolie, an interdict or another available remedy, prior to demolishing a structure constructed to be a home regardless of the phase of construction. The SCA specified that they could only act without court authorisation before the person has begun “putting up poles, lines, corrugated iron sheets, or any similar structure with or without furniture”.
Find relevant documents below:
In the Supreme Court of Appeal:
- SCA judgment (10 July 2024) here.
- Abahlali baseMjondolo's Heads of Argument (22 November 2023) here.
- Abahlali baseMjondolo's Founding Affidavit (13 September 2023) here.
In the Western Cape High Court:
- Western Cape High Court judgment (15 July 2022) here.
- Abahlali baseMjondolo's Heads of Argument (17 September 2020) here.
- Abahlali baseMjondolo's notice for application for leave to intervene as amicus curia (21 August 2020) here.
- South African Human Rights Commission's supplementary Affidavit (18 August 2020) here.