On Wednesday, 4 March 2020, the residents of Marikana informal settlement, represented by SERI, property owners, the City of Cape Town and the Western Cape Provincial Minister of Human Settlement reached an agreement, which was made an order of the Supreme Court of Appeal. The order requires the City of Cape Town to “purchase the properties that are subject of the High Court’s order at a price to be determined in an arbitration between the City of Cape Town and the property owners.”
The arbitration will be conducted by a three-member panel which must be appointed by 15 April 2020 who will determine the purchase price of the properties in accordance with section 12 of the Expropriation Act 63 of 1975 read with section 25(3) of the Constitution.
Section 25(3) of the Constitution states: “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.”
The order specifies that the decision of the arbitrators is not subject to appeal.
The parties reached a settlement agreement in lieu of litigating Fischer v Unlawful Occupiers and Manfred Stock & Others v Unlawful Occupiers, on appeal to the SCA from the Western Cape High Court. In 2017, the High Court dismissed the application to evict 60 000 residents of Marikana informal settlement, finding that the City of Cape Town had infringed the land owners’ property rights and breached the housing rights of the Marikana residents by failing to secure their tenure. The Court directed the City to initiate the process provided for in terms of section 9(3) of the Housing Act, by entering into good faith negotiations to purchase the Marikana land and expropriating the land in the event that purchase negotiations failed.