anti-land invasion unit - City of Cape Town - Supreme Court of Appeal

SERI represents the shackdwellers movement Abahlali baseMjondolo, who were admitted as amicus curiae in an appeal involving the unlawful occupiers of a piece of privately-owned land dubbed "Marikana", located in Philippi, Cape Town. The occupiers, represented by the Legal Resources Centre (LRC), had their shacks demolished by the City of Cape Town's Anti-Land Invasion Unit between April and August 2013 and in early 2014.

In January 2014 the property owner and the City launched an urgent interdict application in the Western Cape High Court to restrain the occupiers from entering or being upon the property. A rule nisi was issued by the court on 10 January, after which the occupiers launched a counter-application on 14 January. On 14 March Judge Gamble in the High Court handed down judgment, finding City’s approach to be “fundamentally flawed”. The City had argued that all structures in which people or signs of human habitation were found, were regarded as “homes” and not demolished, while structures that were vacant (in the sense that there were no people found therein, or that there were no signs of human habitation therein such as furniture or personal effects) were demolished, since the City did not regard such structures as “homes”. According to Judge Gamble, the City’s approach was therefore not so much to question whether the temporary structures were “homes”, but rather to take a decision based on which structures were occupied at the time of demolition. Judge Gamble rejected the City's argument that it was entitled to demolish structures without a court order if it deemed the structures were unoccupied, finding the demolitions to be unlawful and ordering the City to rebuild the shacks.

The owner and the City were granted leave to appeal the judgment in the SCA. Abahlali's amicus submission is on the scope and meaning of the concept of “home” for the purposes of section 26(3) of the Constitution, and the appropriate interpretative approach to be adopted to section 26(3) on the facts of the case. According to the submission: "The primary determinant of whether a shack is a ‘home’ must surely be what else is available to the person who constructed it. If the person who constructed the shack was homeless before, and would be homeless if it was demolished, it requires little imagination to conclude that the shack itself – however modest or ill-furnished – is his or her home.”

The submission also examined whether it is consistent with the principle of legality and the separation of powers for a functionary of the state (e.g. police officers or Anti-Land Invasion Unit officers) to be assigned discretion to decode whether and when an informal structure is occupied as a “home”, and, if it is, what principles ought to govern the conduct of that functionary in deciding whether to dismantle and remove and unlawfully erected structure. This case raises important issues relating to the circumstances in which an organ of state may take steps to remove people and material from unlawfully occupied land, and/or demolish structures erected on that land, without an order of court authorising an eviction.

The case was heard on 27 May 2014. The SCA set aside the High Court order, referring the matter back to the High Court for the hearing of oral evidence without deciding the issue of the constitutionality of the City’s conduct. On 6 June the SCA handed down its judgment, explaining the reasons for the order. It argued that the lower court should have heard the evidence tendered by the parties and determined the facts.

Intervention application

On 1 September SERI launched an urgent intervention application in the Western Cape High Court on behalf of 223 people (67 households) who occupied the settlement before 30 June 2014. The residents are intervening to ensure that the City does not confirm the interim interdict issued by the High Court in January 2014. The residents argue that the interdict is strikingly similar in wording to the one obtained and used by SANRAL in the eviction of Nomzamo informal settlement. They fear that despite the City's assurances, it will use the interdict to circumvent the protections of the Constitution and the PIE Act to illegally evict families living at the Marikana informal settlement.

The case was heard on 1 September 2014. Judge Saldanha granted the intervention and extended the rule nisi to 26 November 2014. He ruled that the Sheriff must erect a noticeboard at the entry point of the settlement with a copy of this order and must every three weeks read out the order by loudhailer (in English, Afrikaans and isiXhosa). The Judge also ordered that the owner and the City must file a supplementary affidavit by 21 October to explain how they would render assistance to the applicants in executing the relief sought by them in paragraph 2.2 of the notice of motion, namely that the respondents are interdicted from “erecting, completing and/or occupying any structures there or extending their current structures save except those respondents currently occupying the property at the date of the granting of this order are not interdicted from occupying the property”.

On 27 November the Western Cape High Court handed down an order protecting the residents from being removed, while interdicting newcomers from erecting further shacks.

• Court order (28 November 2014) here.
• Second respondents' (occupiers represented by SERI) heads of argument (24 November 2014) here.
• Court order (1 September 2014) here.
• Notice of motion in intervention application (29 August 2014) here and founding affidavit here.
• SCA judgment (6 June 2014) here.
• Second amicus (City of Johannesburg) heads of argument and practice note (18 May 2014) here.
• First amicus (Abahlali) heads of argument here and practice note (15 May 2014) here.
• Respondent's (Occupiers) practice note and heads of argument (12 May 2014) here.
• City of Cape Town's heads of argument here and practice note (17 April 2014) here.
• Letter re application of Abahlali baseMjondolo as amicus curiae (14 April 2014) here.
• High Court judgment (14 March 2014) here.