Bulelani Qholani opened a case against the City of Cape Town after a video of him being dragged naked out of his shack went viral. Picture: ESA ALEXANDER
Bulelani Qholani opened a case against the City of Cape Town after a video of him being dragged naked out of his shack went viral. Picture: ESA ALEXANDER

The recent Cape Town high court judgment barring the City of Cape Town from evicting illegal land occupiers from their shacks — occupied or not — without first obtaining a court order risks encouraging land invasions and deepening instability. This is entirely at odds with President Cyril Ramaphosa’s repeated assurances that “land grabs” will not be tolerated.

The court argued that the city would not be prejudiced because it could always apply for eviction orders on an urgent basis. However, this remedy is meaningless given the time needed to obtain such court orders. By then, unlawful occupiers will have become entrenched.

Moreover, those without the means to go to court will have no remedy at all. This will affect not only the 9.8-million people (almost all black) who own formal houses, but also the millions more with informal title to customary plots.

In October, the court’s interim interdict could be overtaken by a permanent ban on the common-law remedy of “counter-spoliation”. This allows a person to take back their property while the process of dispossession is still under way. In practice, says the city, this means evictions must take place within 48 hours and before new shacks are occupied.

Like the interim interdict already granted, the permanent ban is being sought by the SA Human Rights Commission, acting with civil society organisation The Housing Assembly and unlawful occupier Bulelani Qolani. The EFF is supporting them as amicus curiae.

Qolani, evicted from the Ethembeni informal settlement in Khayelitsha by the city’s Anti-Land Invasion Unit (ALIU) in July, told the court that when he saw officials approaching, he went into his dwelling, undressed 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 down before demolishing his shack.

The city, which has instituted disciplinary proceedings against the ALIU members involved, told the court Qolani’s dwelling, erected only the day before, was still unoccupied at the time. In addition, Qolani had chosen to stand naked in front of his shack. This was in keeping with “the latest trend, whereby people undressed themselves” as a strategy to avoid eviction.

The city argued that prior court orders were required only for evictions from shacks already occupied. It was only when shacks had already been turned into homes that unlawful occupiers fell within the ambit of the Prevention of Illegal Eviction From And Unlawful Occupation of Land Act. Only then were they protected by the constitution’s bar on evictions without court orders.

It said the lockdown ban on evictions did not relieve it of its duty to prevent illegal land invasions via swift counter-spoliations. It noted a recent and orchestrated upsurge in land invasions in the city, with more than 100 recorded since the start of July. These were often large (involving hundreds of people), well organised and accompanied by increasing violence.

While sympathising with the homeless, the city said land invasions threatened vital housing and infrastructure projects, allowed unlawful occupants to elbow aside law-abiding citizens waiting patiently on housing lists, and generated crowded shack settlements that were difficult to service. Invasions also eroded land values and deterred investments vital to growth and jobs.

Cape Town mayor Dan Plato pointed out that the city has already lost about 360ha (200 football fields) to land invasions over the last two years. “We could lose every open patch of land, (including) privately owned and state-owned land, along with public parks and sidewalks across the city,” he warned.

But judges Yasmin Meer and Rosheni Allie in effect reduced these issues to the “budgetary and many housing challenges the city faces”, saying such considerations could not outweigh the rights to shelter of “the poor, the homeless, the downtrodden, and the unemployed”.

However, on the court’s approach, land and housing could increasingly pass to those most willing to use force against existing occupiers — while the poor would be least able to resist this assault on the rule of law.

• Jeffery is head of policy research at the Institute of Race Relations.

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