Land-grabbing: Municipalities must uphold the Constitution when dealing with unlawful occupiers

Land-grabbing is a term that captures the story of land dispossession in South Africa. The term has its roots in our apartheid history in which the authoritarian government initially deprived the Black majority (broadly defined) of their property. In democratic South Africa, land grabbing is often used to describe the process in which South Africans (black and white, men, women and children) are dispossessing the state and private businesses of land.

Land grabbers are mostly poor people who are in desperate need of housing. Challenges of unemployment, food insecurity, homelessness, and slow progress in the provision of housing and land has arguably contributed to the land-grab crisis that is confronting local government today. The case of the South African Human Rights Commission and Others v City of Cape Town and Others confirms that municipalities have a legal remedy (counter-spoliation) to respond to land-grabbing in their jurisdiction. The judgment also warns municipalities to uphold the rule of law when they repossess property from unlawful occupiers. This article provides a summary of the above judgment.

A brief summary of the facts

On 1 July 2020, the City of Cape Town authorised its Anti-Land Invasion Unit (ALIU) to demolish structures in Khayelitsha and Ocean View. One of the citizens whose informal structure was demolished is Mr Bulelani Qolani. A video that went viral on social media showed City officials forcefully removing a naked Qolani from his structure. The City of Cape Town had applied for a counter spoliation order to summarily demolish the structures. The mandament van spolie is a common law possessory remedy used to restore possession that was unlawfully lost. The effect of a counter-spoliation order would thus enable the City of Cape Town, subject to certain conditions, to lawfully recover possession over a property where an informal structure had been erected. The High Court discussed the remedy at length and, in my view, indirectly developed the common law remedy by defining the parameters for how and when the remedy should be enforced.

Apartheid-style removals and evictions are strictly prohibited

The Bill of Rights guarantees every person the non-derogable rights to equality, human dignity and not to be treated in a cruel, inhumane and degrading way. Section 7(2) of the Constitution imposes a positive duty on the State to respect, protect, promote and fulfill the rights in the Bill of Rights. The principle of legality requires that a body exercising public power must act within the bounds of the law. Acting in accordance with the rule of law is thus crucial to ensure that each person, regardless of their status in society, is treated with respect and is equally protected by the law. This also finds application in cases in which municipalities retake possession of property that is unlawfully occupied.

In this case, video footage was admitted as evidence in which Bulelani Qolani was being forcefully dragged from his structure while naked. This image, the Court stated, ‘has, profoundly, been described as reminiscent of the brutal forced removals under apartheid’. In paragraph 1 of the judgment, Judge Saldanha and others made it clear that no court order issued by any court in a constitutional democracy would permit such brutal and inhumane conduct perpetrated on an unarmed person such as Bulelani Qolani. It is also clear from section 26(3) of the Constitution that no legislation including by-laws may permit arbitrary evictions. In this regard, the Court held in paragraph 121 that “the conduct of all City officials involved in the incident, whether in the physical manhandling of Mr Qolani, or the demolition with crowbars of his structure while he was still in it, and any of those in authority at the City who condoned it, is deprecated” and is unlawful.

Municipalities require authorisation from property owners to conduct demolitions or evictions on private property

The City authorised its ALIU to effect demolitions or evictions on property belonging to Ocean View Development Trust and the Western Cape Nature Conservation Board without having a mandate or authorisation from them to do so. The Court found that to the extent that the City effected demolitions or evictions without the required permission, it acted unlawfully, and its conduct was equally deprecated by the Court.

Municipalities must maintain records of demolitions

In paragraph 99 of the judgment, the Court makes it clear that municipalities must maintain a record of what happened to the persons and families whose structures were demolished when counter spoliation orders were being enforced against otherwise homeless individuals. The Court found that the City of Cape Town could not provide the Court with records which should have been kept by officials who executed the instruction to demolish structures.

The Anti-Land Invasion Unit

The Court held that the ALIU of the City of Cape Town is not unlawful per se. The ALIU enables the City to prevent and counter acts of self-help whereby people resort to unlawful occupation of its property to set up informal structures. However, the Court stressed that the ALIU and any other entity must carry out this mandate within the strict confines of the law. In this case, the Court found that the conduct of the ALIU in demolishing structures and effecting evictions on private properties without authorisation, and in their handling of Mr Qolani, was unlawful. The power of the ALIU is constrained by the Constitution which imposes upon it the obligation to uphold the Bill of Rights in exercising its powers and functions. Failure to do so may, as it did in this case, result in inhumane acts being committed against a particular class of persons in society.

Comment

This judgment demonstrates how the City of Cape Town has been coping with the land-grabbing crisis in its jurisdiction. It shows that municipalities, in general, have legal recourse to deter people from participating in land-grabbing and to safeguard their properties. At the same time, the case also shows the plight of poor and homeless people who are forced to resort to self-help and occupy vacant land to set up structures for shelter. These structures do not in the least provide them with a decent standard of living and they cannot be said to live dignified lives because of it. A key question is whether this action is because of a failure on the part of national and provincial governments to progressively achieve access to adequate housing as set out in section 26(2) of the Constitution. It is clear from this and other cases that action is urgently needed to respond to the housing backlog which is estimated to sit at 12 million people nationally, 568 000 people in the Western Cape and more than 365 000 people in Cape Town. Municipalities, including the City of Cape Town, should also consider how the land that is lawfully repossessed by its ALIUs can be used to address past imbalances and promote spatial justice in its jurisdiction. Effective monitoring by the South African Human Rights Commission, as it did in this case, for the realisation of the right of access to adequate housing is imperative to respond to the crisis of land-grabbing in South Africa.

By Adv Jennica Beukes, Legal practitioner and Doctoral Researcher