Hearing on halting illegal occupations to commence again

Tomorrow, the hearing in case, No: 8631/2020 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 (Cot), is set to recommence.  

This matter, where 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, will once again be heard in the Western Cape High Court before three judges- after it was reallocated when the first two judges disagreed with each other -  and then postponed in March 2021.

Mandated on behalf of the provincial cabinet, Western Cape Minister of Human Settlements, Tertuis Simmers, said: “The hearing of this  matter has become protracted due to no fault of the parties and I welcome the resumption of this hearing, particularly since it presents us with the opportunity to place our position before the court with the hindsight of the past 18 months of lockdown experience behind us. This hearing has been much delayed, which has cost all the parties both time and money but 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 reasonable and constitutional.

All parties to this matter – including ourselves, the City, private landowners as well as individual residents, really just want certainty as to what can be done by them to protect their land rights immediately and lawfully, especially since the SAPS simply refuses to do so.

Large-scale state-owned land invasions are becoming rampant again, with 38 incidents during August 2021, having increased to 67 during September. In fact, between July 2020 – 4 October 2021, there have been 1 394 attempts of invasions across the Western Cape, with the majority being within the Cape Metro.

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. 

Just in the current 2021/22 financial year alone, the Provincial Government has already spent more than R 75,5 million to prevent land grabs and site invasions. This is an exorbitant amount, which could’ve been utilised to build, and excluding bulk services, approximately 454 Breaking New Ground/fully subsidised homes. The reality is, the common law remedy of counter-spoliation will assist greatly in stemming this invasion tide, as it will empower landowners to act immediately.”

The hearing is set to commence on Monday, 11 October 2021 at 10am.