The City of Cape Town is opposing a legal bid by the South African Human Rights Commission (SAHRC), the Economic Freedom Fighters (EFF) and Legal Resources Centre to strike down the right of landowners to stop unlawful occupation without a court order.
The Western Cape government and South African Police Service (SAPS) are joining the City in opposing the joint court application by the SAHRC and EFF.
The City of Cape Town on Tuesday said three new judges would hear the matter after two other judges could not agree on a ruling on the matter.
The SAHRC and EFF argue that a court order should first be obtained before a landowner can act to stop an invasion of property.
Landowners – backed by the City, police and the Western Cape provincial government – insist it is crucial to remove structures in “real time” while these are still half built and unoccupied.
The City said the applicants also want the well-established legal right – known as “counter-spoliation” – declared unlawful.
“This would remove the existing ability of owners to lawfully retake possession of the seized property, without approaching a court first,” said Cape Town Mayor Dan Plato.
The City argues that counter-spoliation is both constitutional and vital for the protection of public land from mostly well-organised unlawful occupation attempts.
“It is not feasible to follow lengthy court processes before responding to coordinated invasions, which are often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections,” said Plato.
“In these instances, fully-built structures can even be dropped onto sites and furniture thrown in to create the impression of a ‘dwelling’.”
The mayor said over the last five years, the City has responded to protect over 2 826 parcels of land from unlawful occupation attempts, with 993 anti-land invasion operations conducted in 2020/21.
He said the SAHRC, EFF, and Legal Resources Centre are looking to set a very dangerous precedent, not only for all landowners but also for the sustainability of our communities and cities.
“The interdict obtained in the first round of this matter has severely impacted the City’s land protection efforts in the face of a huge unlawful occupation spike since national lockdowns began,” said Plato.
“The Supreme Court of Appeal has consented to hear our appeal against the interdictory relief, and the City is confident that existing property protection rights will ultimately be upheld as both reasonable and constitutional.
“Unlawful occupation of the land – mostly by well-organised invasion – leads to severe dysfunctionality in our city. While we continue to drive sustainable human settlements, we need to uphold the rule of law.
“We owe this not only to the residents of our growing city, but also to future generations who will require land for schools, hospitals, housing, transport infrastructure, and community facilities.”
The matter will be heard in court this week.