eviction application - state buyout of land - City of Cape Town - Western Cape High Court - Supreme Court of Appeal (SCA)

This is an eviction application arising from Fischer v Ramahlele, an application to restrain residents entering and being on erf 150 (“the interdict application”). In the interdict application, SERI intervened on behalf of the shackdwellers’ movement Abahlali baseMjondolo in an appeal involving the unlawful eviction of occupiers of a piece of privately-owned land in Philippi, Cape Town.

Iris Arrilda Fischer, the landowner, subsequently instituted an application for the eviction of the occupiers from her land in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (“the PIE Act”).  SERI represents all of the residents on the land.  The number of residents on the property and on neighbouring properties has grown over the years, resulting in the ad hoc establishment of an informal settlement known as “Marikana”.  The City of Cape Town ("the City") estimates that there are over 60 000 people living on the Marikana settlement.    

On 25 January 2016, Fischer amended her notice of motion seeking, in the alternative to the eviction of the residents, a two-part relief:

• a declaration that the City violated her constitutional property rights and
• an order compelling the City, and the provincial and national housing departments if necessary, to purchase her land.  Fischer is seeking to have the land valued at a market-related rate, calculated as if the residents were not living on it. 

Fischer’s application was heard in February 2017, together with two other identical applications brought by owners of neighbouring properties, which also form part of the Marikana settlement. SERI argued that the only reasonable option that could be pursued in order to avoid making the Marikana residents homeless was for the state to purchase or expropriate the land. SERI further submitted that section 9(3) of the Housing Act 107 of 1997 provides the appropriate legal framework within which to manage the purchase or expropriation of the Marikana land and that the City’s failure to initiate the process required by section 9(3) is unreasonable and unconstitutional. Judgment was reserved.

On 30 August 2017, the Western Cape High Court dismissed the application to evict the 60 000 people living in the settlement. The Court found that the City had infringed the constitutional property rights of the owners of the Marikana land, and had also breached the housing rights of the Marikana residents by its unreasonable failure to do anything to secure the tenure of the Marikana residents. 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.

The property owners, together with the City of Cape Town and the Western Cape Provincial Minister of Human Settlement, sought to appeal the judgment by the Western Cape High Court. 

On 8 April 2019, SERI, on behalf of the occupiers, filed heads of argument in the Supreme Court of Appeals (SCA), arguing that the High Court correctly identified the standard expected of the state in responding to land occupations of this nature which require the state to respond reasonably to an occupation and that the only legal basis on which the state parties to this case can take steps to acquire the properties on which the occupiers reside is to exercise the City’s powers under section 9(3) of the Housing Act. SERI further argued that the appeals brought by the City, the Provincial Minister for Human Settlements, and the property owners should be dismissed.

On 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 the 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 order also specifies that the decision of the arbitrators is not subject to appeal.

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.”

Key documents:

• Supreme Court of Appeal Order (4 March 2020) here.
• Residents' heads of argument to SCA (8 April 2019) here.
• First respondents’ written submissions to leave to amend and leave to appeal (11 May 2018) here.
• High Court Judgment (30 August 2017) here.
• Combined heads of argument of Minister of Human Settlements, Minister of Land Affairs,
  Provincial Minister of Human Settlements, Provincial Minister of Community Safety here. 
• Residents further supplementary heads of argument (27 January 2017) here.
• City's supplementary heads of argument (30 November 2016) here.
• Residents' supplementary heads of argument (29 November 2016) here.
• Ground-breaking Marikana case heads to court, GroundUp (16 September 2016).
• Residents' heads of argument (17 August 2016) here.
• City's heads of argument (15 August 2016) here.
• Fischer's (owner) heads of argument (5 August 2016) here.
• Stock's (owner) heads of argument (5 August 2016) here.
• Coppermoon's (owner) heads of argument (4 August 2016) here.
• Residents' counter application (31 March 2016) here.
• Residents' answering affidavit (31 March 2016) here.
• Owner’s amended notice of motion and founding affidavit (10 January 2016) here.
• Owner’s joinder application (16 July 2015) here.
• Residents’ supplementary affidavit (29 May 2015) here.
• Residents' answering affidavit (November 2014) here.
• Owner’s notice of motion and founding affidavit (27 May 2014) here.