New hearing on halting illegal occupations to commence before three new judges
The case in the consideration of the common law right of counter-spoliation by landowners as a legitimate means to repel land invasions, launched as part B of an application by the South African Human Rights Commission (SAHRC) and the Economic Freedom Fighters (EFF) litigation against the City of Cape Town (CoCT), recommences this week.
In this matter the Western Cape Government (WCG) has intervened so as to make submissions in support of the lawfulness of counter-spoliation as a constitutional means to prevent unlawful land invasions and is to be reheard in the Western Cape High Court, before three new judges.
This comes after the completion of a first hearing before 2 judges, which concluded at the end of November last year, after four days of argument by the various Counsel. The two presiding Judges Meer and Allie could not reach an agreement on the terms of their judgement.
Despite suggestion that the appointment of a further single judge - so as to break the apparent deadlock between these two judges - would be appropriate, Judge President Hlophe determined to rather appoint three new judges to hear the matter de novo - at considerable cost and time to all concerned.
The new judges have called on the parties to file updated heads of arguments, while the National Government has been requested to participate more actively in the upcoming hearing, and which is now due to last at least two days this week.
Mandated on behalf of the provincial cabinet, Western Cape Minister of Human Settlements, Tertuis Simmers, said: “Although we are disappointed that a brand new hearing of the matter has been required, we remain confident in our argument that the common law remedy of counter-spoliation, which recognises an owner's right to immediately retake possession of unlawfully seized property, without approaching a court first - is both constitutional and necessary.
From our own experience as landowners we can demonstrate to the court the consequences that follow when the tools to prevent large-scale land invasions in a practical and lawful manner are all but removed.
Eviction orders take months if not years to obtain, rendering urgent court redress a mythical goal and often a futile exercise for landowners at the end of violent or well-orchestrated landgrabs.
The exorbitant amounts currently being spent by government to prevent illegal land grabs and site invasions is sufficient evidence of this reality, but is still insufficient to stem this tide without the common law remedy of counter-spoliation too, as well as a motivated police service and responsive courts.”
The hearing is set to commence on Thursday 25th of March at 10am.