The recent judgment in the Cape High Court has set in motion a new, and extremely dangerous, political phase in South Africa.
by Anthea Jeffery
First published by DAILY FRIEND on August 27
In a judgment handed down last Tuesday, the Cape Town high court issued an interim interdict barring the City of Cape Town from evicting illegal land occupiers from their shacks – whether these are occupied or not – without first obtaining a court order.
This interim interdict will probably soon be replaced by a final declaratory order to the same effect. This order will remain in place for the duration of the Covid-19 lockdown, under which all evictions have been barred.
The city argued strongly against the interim interdict, saying that prior court orders are required only for evictions from shacks already occupied. It is only when shacks have already been turned into homes, it said, that unlawful occupiers fall within the ambit of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 (PIE). It is also only then that they become protected by Section 26 of the Constitution, which bars evictions from people’s homes without prior court orders.
The city also argued that the prohibition on evictions under lockdown regulations does not prevent municipalities from fulfilling their duty to prevent the illegal invasion of land. That duty demands swift action in removing shacks before they have been occupied.
Rapid demolition is particularly important given a recent and orchestrated upsurge in land invasions in the city – with 109 recorded since the start of July. These incursions are often large (involving hundreds of people) and well organised. Stands are quickly pegged off, shacks are speedily put together, and sometimes pre-built structures are brought in and dropped directly on to the land.
Scale of illegal settlement
The scale of illegal settlement is also considerable. On land owned by the Western Cape Nature Conservation Board in Mfuleni or Zwelethu, for example, the number of shacks went from zero on June 17 2020 to about 3,000 by July 15. It would have been higher still if the city’s Anti-Land Invasion Unit (ALIU) had not already removed some 1,400 unoccupied shacks.
Now, however, the city has been barred from removing unoccupied shacks without a prior court order. This remedy is meaningless, however, given the time needed to obtain such an order. By then, unlawful occupiers will have become entrenched on the invaded land and removing them will be impossible in practice.
The application for the court order was brought by the South African Human Rights Commission (HRC), acting together with a civil society organisation called the Housing Assembly and an unlawful occupier by the name of Bulelani Qolani. The Economic Freedom Fighters (EFF) intervened, to support their application, as an amicus curiae or friend of the court.
Mr Qolani had been evicted from the Ethembeni informal settlement in Khayelitsha by members of the ALIU early in July. According to his affidavit, when he saw the ALIU approaching, he went into his dwelling, undressed in preparation for a bath, and stood naked outside his shack asking to be allowed to finish his bath. When he went inside again, the ALIU dragged him naked from his home, pepper-sprayed him, and pinned him to the ground before demolishing his shack. Part of these events – the ALIU pulling his naked body from his shack – was captured on video and distributed across the world, eliciting public outrage.
The city has suspended the ALIU members involved and instituted disciplinary proceedings against them. It told the court that Mr Qolani’s dwelling was still unoccupied at the time of his eviction, as it had been erected only the day before. In addition, it had been Mr Qolani’s own choice to undress and stand naked in front of his shack. This was also in keeping with “the latest trend, whereby people undressed themselves” so as to cause discomfort to the ALIU and prompt it to turn away.
The city warned too of the increasing violence that was being directed at the ALIU and the metro police by people resisting eviction. In a four-week period from mid-July, for instance, 46 law enforcement officers had been injured on duty and 17 official vehicles had been damaged.
According to the city, though it sympathises with the plight of the homeless, land invasions – especially when so frequent, large, and orchestrated – simply cannot be tolerated. These invasions threaten vital housing and infrastructure projects. They allow unlawful occupants to elbow aside law-abiding citizens waiting patiently on housing lists. They generate shack settlements so crowded – and often built on such unsuitable land – that services cannot easily be provided and water pollution is common. They also erode the value of land and deter the investments vital to growth and jobs.
‘We could lose every open patch of land’
According to mayor Dan Plato, the city has already lost some 360 hectares of land – the equivalent of 200 football fields – to land invasions over the last two years. Adds Mr Plato: “Should municipalities be prevented from protecting vacant land from illegal land invasions, we could lose every open patch of land. This would include privately-owned and state-owned land, along with public parks and sidewalks across the city.”
Moreover, those who lack the means to approach the courts will have no remedy at all – and will simply lose their land with no semblance of legality or justice. This will affect not only the 9.8-million people (almost all of them black) who own formal houses, but also the millions more with informal title to customary plots. People such as Limpopo farmer David Rakgase – who is finally to obtain ownership of the farm the state agreed to sell to him back in 2002 – will be particularly vulnerable.
The Cape Town high court failed to engage with any of these vital points. Instead, Judges Yasmin Meer and Rosheni Allie effectively reduced them to the “budgetary and many housing challenges the city faces”. The justices also said that considerations of this kind could not outweigh the rights of “the poor, the homeless, the downtrodden, and the unemployed to seek refuge in informal settlements and erect structures to provide them with shelter”.
The city would not be prejudiced, the judges went on, because it could always approach the courts for eviction orders on an urgent basis. However, this is profoundly short-sighted when the practical difficulties in obtaining such orders could trigger even more invasions and court rolls could soon be overflowing with eviction applications waiting to be heard.
Seemed to matter little
This prospect seemed to matter little to the high court, however. “Land invasions do not occur because of court orders or judicial oversights,” it said. “Land invasions are driven by homelessness, poverty, and desperation.”
On the court’s approach, law and order – already under significant threat – are likely to crumble still further. Land and housing could then increasingly pass to those most able and willing to use violence to expand or retain their holdings. Ordinary people, and especially the poor, would suffer the most in this situation.
The court’s current interim order, even when replaced by the final declaratory order the HRC and EFF are seeking, will apply only for the duration of the lockdown. However, a permanent prohibition on evictions could in time be introduced, as recommended by the Presidential Advisory Panel on Land Reform and Agriculture in its July 2019 report.
The panel proposed “an end to the criminalisation of unlawful occupation by the poor” and a “re-orientation” of the police role in enforcing evictions. Since “unlawful occupation is not in and of itself a crime, authorities, including Anti-Land Invasion Units, need to protect the rights of vulnerably housed residents and occupiers”, it said.
Though the panel did not spell this out, the implication is that land invasions would become lawful – and that the role of the city’s ALIU and other law-enforcement agencies would then be to protect land invaders, rather than evict them.
Both the high court ruling – and the risk of a permanent prohibition on the eviction of unlawful occupiers in the future – are entirely at odds with President Cyril Ramaphosa’s repeated assurances that “land grabs” will not be tolerated.
In practice, land grabs have long been happening and will now be further fuelled. Many have already turned violent and the impetus to conflict is likely to grow.
It is extraordinary that the Cape Town high court could have been so blind to the practical and legal ramifications of its ruling.
This is sure to promote instability, encourage a free-for-all in which the most powerful are likely to prevail – and unravel the rule of law the Constitution is supposed to guarantee.