SCA dismisses City of Cape Town appeal against interim order preventing evictions during state of disaster

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Bulelani Qolani, whose eviction set off a challenge to the City of Cape Town's evictions processes.
Bulelani Qolani, whose eviction set off a challenge to the City of Cape Town's evictions processes.
Jenni Evans, News24
  • The Supreme Court of Appeal has dismissed an appeal against an interim order preventing evictions by the City of Cape Town.
  • The interim relief forms part of a High Court hearing on counter spoliation, in which judgment has been withheld.
  • The SCA upheld an appeal by the City against the payment of compensation to those who had been removed.

The Supreme Court of Appeal (SCA) has dismissed, in large part, an appeal by the City of Cape Town against an interim ruling preventing the eviction of people and demolition of structures without a court order during the national state of disaster.   

The City approached the SCA after the Western Cape High Court ruled in favour of an application by the South African Human Rights Commission that stops the municipality from clearing illegally built informal homes without a court order.

The interim order was previously handed down by the Western Cape High Court, while it heard the second part of the matter dealing with counter spoliation.

READ | Bulelani Qolani yet to see justice for naked tackle during shack demolition

Counter spoliation is a legal remedy that entails an owner getting back property that is in the process of being unlawfully taken away. 

The counter spoliation matter was brought to the court by the SAHRC, Bulelani Qolani and social justice movement Housing Assembly, following the removal of a naked Qolani from a shack being broken down around him in July 2020, when the lockdown prohibited eviction.

The matter was heard in front of a full bench and was finalised on 5 November, with judgment reserved.

The High Court also granted relief to the EFF and occupiers of Erf 544 in Mfuleni.

Compensation

It ruled that the City must provide each household, whose dwelling was destroyed, with the equivalent of building materials, and that each occupant of the property be paid R2 000 as compensation for the loss of their personal possessions.

Despite the imminent judgment of the full court, the City persisted with its appeal "on the basis that the court a quo did not apply the correct test in finding the requirements for interim interdictory relief had been met", the SCA judgment said.

The SCA relied on precedent that an order is appealable if the decision is final in effect, and not susceptible to alteration by a court of first instance. The court found that the interim orders were not final and that they would be reconsidered by the full court hearing the counter spoliation matter.

The only issues excluded from the determination of the court was the question of the return of the building materials seized by the Anti-Land Invasion Unit, the compensation of R2 000 in lieu of loss of personal belongings, and the question of costs.

The SCA found that the City was "not precluded from evicting persons, but merely prohibited from doing so without judicial supervision", and that the orders were not final in effect.

The only part of the appeal that was upheld was regarding the compensation.

The court found that the relief sought was of a final nature and should not have been awarded in the interim. It also found there was insufficient detail on the papers as to the nature of the items taken and from whom they had been taken.

In response to the court's decision, the City of Cape Town said: "The City notes the judgment from the Supreme Court of Appeal on the interim order that was granted in the Western Cape High Court and is currently studying it."

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