{"id":231752,"date":"2022-07-19T16:16:08","date_gmt":"2022-07-19T14:16:08","guid":{"rendered":"https:\/\/www.groundup.org.za\/article\/high-court-rebukes-city-of-cape-town-for-covid-evictions\/"},"modified":"2022-07-19T16:16:08","modified_gmt":"2022-07-19T14:16:08","slug":"high-court-rebukes-city-of-cape-town-for-covid-evictions","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/high-court-rebukes-city-of-cape-town-for-covid-evictions\/","title":{"rendered":"High Court rebukes City of Cape Town for Covid evictions"},"content":{"rendered":"<div id=\"article_body\">\n<p><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/photographers\/Ashleigh%20Furlong\/Bromwell-AshleighFurlong-20170912.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt class=\"warn_big\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/07\/high-court-rebukes-city-of-cape-town-for-covid-evictions.jpg\"><\/a><\/p>\n<p class=\"caption\">The Western Cape High Court has ruled that certain shack demolitions carried out by the City of Cape Town during the Covid lockdown were illegal. Archive photo: Ashley Furlong<\/p>\n<ul>\n<li>\n<p class=\"intro\">The High Court has ruled that certain shack demolitions carried out by the City of Cape Town during the Covid lockdown were illegal.<img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/07\/high-court-rebukes-city-of-cape-town-for-covid-evictions.gif\" width=\"1\"><\/p>\n<\/li>\n<li>\n<p class=\"intro\">The City had incorrectly applied the remedy of counter spoliation, the court found.<\/p>\n<\/li>\n<li>\n<p class=\"intro\">The judges lambasted City officials for their actions and \u201ccynical\u201d response.<\/p>\n<\/li>\n<li>\n<p class=\"intro\">The judges condemned City officials for the \u201cblatantly unlawful\u201d eviction of Bongani Qolani.<\/p>\n<\/li>\n<\/ul>\n<p>The Western Cape High Court has ruled that the City of Cape Town wrongly applied the remedy of \u201ccounter spoliation\u201d when it demolished shacks and evicted families from several informal settlements during the Covid-19 lockdown.<\/p>\n<p>Judges Vincent Saldanha, Mokgoatji Dolamo and Hayley Slingers stated that when correctly interpreted and applied, counter spoliation \u2013 a legal remedy which allows people to forcibly re-take possession of property unlawfully taken from them \u2013 was neither unconstitutional nor invalid.<\/p>\n<p>But the City was incorrect in its interpretation and application of counter spoliation when it used this to evict people and demolish their shelters, both occupied and unoccupied.<\/p>\n<p>The three judges also ruled that the City\u2019s conduct in demolishing and evicting <a href=\"https:\/\/www.groundup.org.za\/article\/court-rules-no-evictions-and-demolitions-can-be-done-without-court-orders\/\">Bongani Qolani<\/a> from a shack he occupied at Empolweni on 1 June 2020, during the Covid-19 lockdown, was unlawful and unconstitutional.<\/p>\n<p>It was <a href=\"https:\/\/www.groundup.org.za\/article\/crucial-case-legality-shack-demolitions-starts-cape-town\/\">this incident<\/a> which sparked the application before the judges. The <a href=\"https:\/\/www.groundup.org.za\/article\/sahrc-eff-battle-city-cape-town-over-lockdown-demolitions-and-evictions\/\">main applicant<\/a> was the South African Human Rights Commission (SAHRC), but others, including the EFF and Abahlali BaseMjondolo, joined in.<\/p>\n<p>The case was first argued before two judges, but they could <a href=\"https:\/\/www.groundup.org.za\/article\/judges-shack-demolition-case-fail-reach-agreement\/\">not reach consensus<\/a>. A new panel of three judges was then appointed to preside.<\/p>\n<div class=\"editor-summary\"><strong>Read the full judgment <a href=\"https:\/\/www.groundup.org.za\/admin\/filebrowser\/detail\/?&amp;dir=documents&amp;filename=sa_human_rights_commission__others_v_the_city_of_cape_town__others.pdf\">here<\/a>.<\/strong><\/div>\n<p>In the ruling handed down on Friday, the judges said the <a href=\"https:\/\/www.groundup.org.za\/article\/bulelani-qolani-what-happened-he-was-dragged-naked-his-shack\/\">image of Qolani<\/a>, naked and in full glare of the public and social media, being forcefully dragged out of his informal structure by municipal officials, had been likened to the brutal forced removals under apartheid.<\/p>\n<p>The judges said in considering the matter, they were mindful of the profound levels of homelessness, the \u201cever increasing incidents of unlawful invasions of vacant land by predominantly poor and desperate people\u201d, and also of orchestrated attempts at land grabs for political and other nefarious reasons.<\/p>\n<p>They said it was the City\u2019s understanding of counter spoliation was central to the case.<\/p>\n<p>They said counter spoliation was a robust and speedy remedy aimed to preserve public order by preventing people from taking the law into their own hands. But it could only be used in limited circumstances and the window of opportunity was narrow.<\/p>\n<p>The City believed that it could use the remedy \u201cat any stage before a fully constructed informal structure becomes as occupied as a home\u201d. This was misguided and wrong, the judges said.<\/p>\n<p>They said counter spoliation might, for example, be a legal remedy if someone was just putting pegs in the ground, but if the occupier was putting in the last wall or door, that might, in law, be an indication that \u201cpossession was perfected\u201d.<\/p>\n<p>In these circumstances, the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act would come into play, and the City would have to get <a href=\"https:\/\/www.groundup.org.za\/article\/court-rules-no-evictions-and-demolitions-can-be-done-without-court-orders\/\">a court order<\/a> if it wished to evict the occupants.<\/p>\n<p>\u201cIt appears that the City uses the remedy as a means of obtaining final relief without judicial intervention,\u201d they said. \u201cThe City cynically argued that the homeless occupiers should be the ones to approach the court if they believed its conduct was unlawful.\u201d<\/p>\n<p>Regarding the treatment of Qolani, while the City argued that there were disputes of fact which could not be resolved on the papers before the court, the judges said video footage confirmed how the incident unfolded.<\/p>\n<p>\u201cThey disputed that he was an occupant of the structure. It\u2019s about as far-fetched as it gets.<\/p>\n<p>\u201cTheir conduct was clearly an attempt at a summary eviction and the demolition was blatantly unlawful.<\/p>\n<p>\u201cThe conduct of the City officials on that day, and those in authority who condoned it, is to be deprecated,\u201d the judges said, rebuking the City manager for referring to Qolani as \u201ca nude streaker on social media\u201d, in his affidavit.<\/p>\n<p>In a press statement, the Socio-Economic Rights Institute (SERI), which represented Abahlali, said the court had accepted its submissions that the right to counter spoliation was significantly narrower than the state and property owners had traditionally accepted.<\/p>\n<p>This was that the requirement of possession need only be \u201cpeaceful and undisturbed\u201d and not, as more broadly defined, \u201cdurable and stable\u201d.<\/p>\n<p>\u201cThis 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,\u201d SERI said.<\/p>\n<h2 class=\"subheading\">City responds<\/h2>\n<p>But in a statement on Tuesday, the City said it is is considering its options.<\/p>\n<p>It said the ruling may render protection of immovable property via this method all but impossible in practice, especially in instances of well-organised illegal land invasions.<\/p>\n<p>The Safety and Security Directorate, including the Anti-Land Invasion Unit, is currently being briefed on the enforcement implications of the court ruling, said Councillor JP Smith.<\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2022 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/07\/high-court-rebukes-city-of-cape-town-for-covid-evictions.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Western Cape High Court has ruled that certain shack demolitions carried out by the City of Cape Town during the Covid lockdown were illegal. Archive photo: Ashley Furlong The High Court has ruled that certain shack demolitions carried out by the City of Cape Town during the Covid lockdown were illegal. The City had [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":231753,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-231752","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/07\/high-court-rebukes-city-of-cape-town-for-covid-evictions.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/231752","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=231752"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/231752\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/231753"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=231752"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=231752"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=231752"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}