- The City of Cape Town's land occupation policy was taken to task in the Western Cape High Court.
- This follows last year's eviction of a naked Bulelani Qolani.
- A friend of the court submitted that the City should at least try alternatives to eviction, like engaging occupiers as soon as a settlement starts.
The City of Cape Town should "at least try" to engage communities building shacks unlawfully on its land instead of defaulting to getting its Anti Land Invasion Unit in to demolish the shacks, the Western Cape High Court heard on Tuesday.
"The only thing that has been tried is counter spoliation, and that hasn't worked. Something else needs to happen," said lawyer Stuart Wilson, making submissions as a friend of the court on behalf of Abahlali BaseMjondolo.
The case dates back to the widely-publicised eviction of a naked Bulelani Qolani from his shack in Khayelitsha on 1 July 2020. The incident, filmed by an official from the EFF, caused outrage in many quarters.
The City suspended four of its law enforcement officers, but claimed it had footage of Qolani removing his clothes to "taunt officers".
The eviction came during the earlier stages of the lockdown, which was marked by many people erecting shacks on open land, saying their landlords had evicted them for not paying rent due to losing their jobs during the pandemic.
The SA Human Rights Commission took the matter to court and was joined by the Housing Assembly, Qolani, the EFF, and the people who currently occupy Erf 544, portion 1 of Mfuleni.
The respondents are the City of Cape Town, the Minister of Human Settlements, the National Commissioner of Police, the Minister of Police and the Western Cape provincial police commissioner.
That particular site is opposite a wastewater treatment plant, and the City already said the land was earmarked for expansion to the plant so that it could increase its services to parts of Khayelitsha.
Friends in the area later rebuilt Qolani's shack, but the entire situation threw a spotlight on what the City was legally allowed to do if the land was occupied without permission.
It questioned the City's definition of what constituted property, and whether it could simply demolish shacks that appeared to be unoccupied.
The number of shacks at that settlement had also increased dramatically, and during winter, they become flooded, but the residents refused to budge.
The applicants want the counter-spoliation by the City to be declared unlawful and for the City's demolition of property to be declared unlawful.
Wilson submitted that the City could not simply default to counter-spoliation - a legal remedy that allowed a person to forcibly retake possession of property that was unlawfully taken from them - whenever land was unlawfully occupied.
He said the City needed to step in as soon as an occupation started, to speak to people about possible other alternatives, or to explain why they could not settle there.
Instead, he said, the City tended to go in hot with its Anti Land Invasion Unit to demolish shacks and tempers then flared, with officials on the ground left to decide whether a structure was occupied or not, whether it was "property" and whether it should be demolished, without a court order.
"It is only once there has been a pitched battle over a number of days, the situation gets out of hand," said Wilson from the Socio-Economic Rights Institute.
"Then obviously tempers are flared."
He said the first thing the City should do is try and see where people were coming from, what their needs were, and whether their needs could be met with the provision of a modest piece of land somewhere else or by managing the occupation.
Meeting communities by force meant that they would simply marshal more people as a defence to "level the playing field" against the Anti Land Invasion Unit.
"You get your mates around so that the City doesn't just kick you out of the structure, it has got to kick 20 other people out of the structure."
He said at present there was only one option that the City used - meeting a community by force.
He submitted that the City had a duty to look after the poor and the vulnerable.
If people had nowhere else to go, the City may have to manage a new land occupation with acceptable limits.
As it stood, he added, the City's housing backlog would take 70 years to clear.
"Far from being inimical to the orderly provision of housing, permitting the controlled occupation of land by people who would otherwise have nowhere else to go, has to be part of any reasonable housing policy of getting its Anti Land Invasion Unit to demolish shacks erected during unlawful land occupations," he said.
Earlier, the court dismissed an application for the recusal of Judge Hayley Slingers.
The application was brought because Slingers had not declared that her husband works for the City of Cape Town.
The application continues.