The City of Cape Town and Others vs South African Human Rights Commission & Others
The Legal Resources Centre on behalf of their clients, the South African Human Rights Commission, the Housing Assembly, and Mr Bulelani Qolani successfully defended an appeal brought by the City of Cape Town in the Supreme Court of Appeal. Judgment was handed down on 10 July 2024 and can be found here https://www.saflii.org/za/cases/ZASCA/2024/110.html
This matter commenced in July 2020 when the Anti Land Invasion Unit evicted various occupiers around Cape Town at the height of the COVID-19 pandemic in a manner that was reminiscent of the Apartheid-style forced evictions. One of the integral arguments by the city was that their conduct amounted to counter-spoliation.
The Western Cape High Court made a finding in the matter that was adverse to the City of Cape Town[1] in respect of their use of the defense of Counter Spoliation, and found that:
Counter spoliation, properly interpreted and applied, is neither unconstitutional nor invalid. However, the APPLICATION of counter spoliation, incorrectly interpreted and applied by the City, is inconsistent with the Constitution and invalid insofar as it permits or authorizes the eviction of persons from, and the demolition of, any informal dwelling, hut, shack, tent, or similar structure or any other form of temporary or permanent dwelling or shelter, whether occupied or unoccupied at the time of such eviction or demolition.
The City of Cape Town’s appeal centered around the proper interpretation of counter spoliation principle.[2] The SCA also looked at whether an organ of the state can counter-spoliate when homeless people occupy its land. And if so, under which circumstances can it justifiably do so without resorting to one of the available remedies under our law?
Ultimately the court found that:
a municipality might be able to successfully counter-spoliate when homeless people invade its unoccupied land in certain circumstances. It will be justified to do so, without resorting to the mandament van spolie or an interdict or under PIE, because counter-spoliation is not unconstitutional. It remains part of our law until determined otherwise. However, it must do so immediately within a narrow window period, during which counter-spoliation is legally permissible. The window closes and the recovery is no longer immediate when the despoiler’s (“occupiers”) possession of the land is perfected. Thereafter, the City must not breach the right to privacy enshrined in s 14(c) of the Constitution, ‘which includes the right of persons not to have their possessions seized without due process’.
The Court therefore affirmed the position of the High Court and confirmed that the City’s actions in evicting the occupiers in 2020 were unlawful. We emphasize that the rights of occupiers must be respected and protected, and due process should be followed.
For more information or media queries:
Sherylle Dass:
sherylle@lrc.org.za
076 223 3674
Saadiyah Kadwa:
saadiyah@lrc.org.za
067 766 2167
[1] https://www.saflii.org/za/cases/ZAWCHC/2022/173.html
[2] Counter Spoliation – as a general rule, a possessor who has been unlawfully dispossessed cannot take the law into [their] hands to recover possession. Instead, [they] will have to make use of one of the remedies provided by law. But if the recovery is forthwith (instanter) in the sense of being still a part of the act of spoliation, then it is regarded as a mere continuation of the existing breach of the peace and is consequently condoned by the law.
