On 7 May 2024, the Supreme Court of Appeal (SCA) heard arguments in a matter between the South Africa Human Rights Commission v The City of Cape Town. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order.
SERI represents Abahlali baseMjondolo who are amicus curiae in the case because of their extensive experience with illegal actions performed by ALIU in Durban. Abahlali seeks to show the court the ALIU's track record in terms of its conduct and to demonstrate how its conduct in Cape Town is not meaningfully different that of the anti-land invasion units in eThekwini and Johannesburg.
On 15 July 2022, The Western Cape High Court handed down its order in which it found that a series of demolitions and evictions that took place in 2020 by the City of Cape Town, including that of Mr Qolani in Khayelitsha, were unlawful and unconstitutional. It also found that the City's interpretation and application of counter-spoliation is inconsistent with the Constitution and is invalid insofar as it permits demolitions of and evictions from any informal dwelling whether occupied or unoccupied at the time of the eviction or demolition.
The Court accepted Abahlali's submissions that the right to counter-spoliate is significantly narrower than the state and property owners have traditionally accepted which is that the requirement of possession need only be "peaceful and undisturbed" as interpreted in Yeko v Qana. This finding explicitly overrules the broader interpretation in Ness v Greef, which is the case often cited to argue that shackdwellers must have "durable and stable" occupation before a court order is required to remove them. This means that once a person is present on land with the intent to construct a shack, and manifests that intent by beginning to erect a structure, they are in possession and a court order is required to remove them.
The City of Cape Town has appealed this order in the Supreme Court of Appeal. The matter was heard on 7 May 2024 and judgment was reserved.
Read more about the case here.