Still no clarity on City of Cape Town's 'guidelines' on getting occupied property back

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Bulelani Qolani at the door to the shack which was torn down with him inside. It was rebuilt by neighbours.
Bulelani Qolani at the door to the shack which was torn down with him inside. It was rebuilt by neighbours.
Jenni Evans
  • More than a year after Bulelani Qolani was dragged naked from a shack, there is still no clarity on the City of Cape Town's guidelines to get its property back
  • Judgment was reserved in the matter which involved technical arguments on how the City can reclaim land it believes has been taken from it. 
  • The SAHRC wants the City's guidelines to be declared unconstitutional.

Judgment has been reserved in a mammoth application on the City of Cape Town's removal of alleged illegal occupiers from vacant land. 

It is the second time the matter is being heard, as the judges grapple with the complicated legal and societal issues.  

The application was brought in the wake of outrage over the removal of a naked Bulelani Qolani from a shack being broken down around him in July 2020, when the lockdown prohibited eviction.

The City of Cape Town has argued that it did not evict him, but used a legal remedy called "counter spoliation" which it regards as a permissible form of "self-help" to get its property back.

It intends to use the land for upgrades to the sewerage works serving Khayelitsha.

On Friday, the hearing resumed with further intense and technical arguments over what constitutes occupation, possession, a home, counter-spoliation, and eviction. 

Counter-spoliation means recovering property taken from you. 

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

The case is likely to set a precedent in the handling of a growing numbers of settlements that spring up almost overnight on vacant land. 

The big questions appeared to be: is a structure a home, and if so, must it be occupied to avoid being demolished. And, what rights do the people have if they have built illegally on City-owned land? Does the City need to get an eviction order if people occupied land without permission, or, can it legally take back what it considers its own by removing structures from the land.

The City believes that there is no one-size-fits-all blanket rule, and many factors have to be decided in each case. 

It believes it has sufficient guidelines for its officers to exercise their discretion when arriving at a site to decide which structure must be demolished. 

However, counsel for the SA Human Rights Commission, Norman Arendse, believes this approach is "heartless", and leaves the discretion up to security guards and Anti-Land Invasion Unit officials. He said these decisions are so complicated that the court has been trying to figure them out for months. 

Counter-spoliation 'unconstitutional'

"You cannot leave it to a non-judicial officer to decide whether to demolish or evict, when lawyers have been debating for days what it (counter-spoliation) means," he said.

Arendse submitted that the counter-spoliation remedy should be ruled unconstitutional. 

He said that the City would not even say what the consequences were if its guidelines on counter-spoliation were breached. 

He had even been unable to get the notes of the disciplinary hearings of the four officers involved in the Qolani incident, to find out why they were acquitted. 

The EFF's counsel Tshidiso Ramogale said the City did not even have a written document yet that stated the guidelines it says it has.  

READ | Naked man eviction: City of Cape Town should try alternatives to demolishing shacks, court hears

The incident, filmed by an official accompanying the EFF's Melikhaya Xego, caused howls of outrage and set off a protest. 

The SAHRC and the EFF were among the parties challenging the matter in court. 

The matter was heard by Judges Vincent Saldanha, Mokgoatji Dolamo and Hayley Slingers.

Qolani is understood to be pursuing separate civil action over the incident. 

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