- The Housing Assembly welcomed a landmark judgment interdicting the City of Cape Town’s evictions during the Covid-19 declaration of a disaster, without a court order.
- The judges lambasted the City for not following due process and SAPS who were monitoring evictions, but not ensuring they were done lawfully.
- The court also ordered the return of the possessions of those evicted.
A housing rights group lauded a Western Cape High Court ruling interdicting the City of Cape Town from evicting people during Covid-19 without a court order – but the City indicated it would appeal the judgment as it felt it had not broken the law.
“You have no idea how we feel as an organisation and what communities are going through,” said Housing Assembly chairperson Kashiefa Achmat, after the judgment.
“We are very excited, truly we are. The City operates like it is a law unto itself,” said the former retail worker turned activist.
“The person giving these instructions must be dealt with.”
Achmat said that attempts to resolve complaints over the city’s evictions were ignored “or they listened with half an ear”.
Trying to oppose evictions during the Covid-19 declaration of a disaster, was made even more difficult with no court order in hand, she said.
Instead, it was left to neighbours and activists to film evictions on their cellphones as proof that it was indeed happening.
Video footage of Bulelani Qolani being tackled naked, the destruction of Ginola Phillip’s’Wendy House in Hangberg, Hout Bay, and further evictions in Kommetjie Township, Ocean View were cited in the judgment.
“We are glad for the videos we took that we could show the judges.”
– Kashiefa Achmat
“This is the brutality we are going through.”
WATCH | Bulelani Qolani seeks justice, neighbours team up to rebuild his shack after dragging
The eviction of Qolani was widely publicised after being filmed by Mandiso Mfihlo, while EFF councillor Mbulelo Dwane was called to the area.
The SA Human Rights Commission and Qolani subsequently approached the Western Cape High Court. The EFF and the people occupying Erf 544 of Portion 1 in Mfuleni were intervening applicants.
The regulations and directions relating to the declaration of a disaster announced by President Cyril Ramaphosa stated at first that evictions may not occur, but also stated that “land invasions” could not occur. Subsequent regulations stated that a court order was required for an eviction.
The matter was heard last week and judgment delivered on Tuesday.
The applicants wanted urgent interim relief and judicial oversight into evictions and demolitions during the Covid-19 national state of disaster, in informal settlements, in particular, where the poor and vulnerable lived.
They wanted the City of Cape Town, its Anti-Land Invasion Unit (ALIU), and eviction contractors to be restrained from carrying out evictions without a court order. In the judgment, it was stated that visual assessments were being taken to decide if an eviction should be carried out by the ALIU and private contractors.
They also wanted the SA Police Service to ensure that evictions were done lawfully in line with people’s Constitutional rights to dignity and fairness, even though the police did not carry out the evictions themselves, but monitored on the sidelines for unrest related to evictions.
They also wanted the City of Cape Town to be restrained from carrying on with its tender for a company to assist with the evictions, arguing that the companies were incentivised per load of material they carried away, and per eviction, and could carry out an eviction by a “visual assessment” of whether it was necessary.
The court granted the interim order on those points and lambasted the parties involved in carrying out or monitoring the evictions.
It ordered that possessions be returned within a week to those affected from 1 May, a list be drawn up to record who it was, and that they be paid R2 000 in compensation.
Achmat said job losses and subsequent homelessness caused by the Covid-19 lockdown, and the need to isolate in overcrowded homes left people looking for other places to sleep.
She said that when people moved to an empty space without even electricity and water, they faced eviction without a court order.
“The City suddenly says something is going to be built there,” claimed Achmat.
“The City is not building enough houses,” she added.
The overcrowding in homes was also putting people at risk of becoming victims of crime.
“So what must they do? Some of them lost their jobs, and still their houses are being torn down,” she said.
The City of Cape Town indicated it intended appealing the judgment to protect public land.
Mayor Dan Plato said in a statement that the decision set a dangerous precedent for all land owners and removed the right to prevent land occupation by removing empty, unoccupied structures.
“This right – known as counter-spoliation – is a well-established common law principle. Court orders explicitly permit the City to conduct counter-spoliation to protect specific sites from invasion by preventing the erection of illegal, unoccupied structures,” he stated.
“Since 1 July, the City’s land protection efforts have led to the removal of over 55 000 illegal structures in around 30 different parts of the metro. There have been well over 100 separate land invasion incidents recorded.”
In reply to News24’s questions on when people would get their property back and the R2 000 compensation, Councillor Malusi Booi, the City’s Mayoral Committee Member for Human Settlements said the City adhered to the law regarding evictions.
“This judgment is being studied and operational actions are being determined in terms of the questions below,” he said.
“It must be noted that the judgment attempts to go further than the Constitution and PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act) in terms of unoccupied structures.”
READ | City of Cape Town to appeal court’s eviction judgment, says it has to ‘protect public land’
Police spokesperson Brigadier Vishnu Naidoo said: “We are aware of the judgment by the [Western] Cape High Court. Our legal team is currently studying the judgment and a response will be provided in due course.”
SAPS had contended it was not them carrying out the evictions.
But the High Court judges disagreed, noting that since officers from the Harare police station had been present at one of the evictions near the site where Qolani lived, it was their duty to ensure that crimes were not committed during an eviction, such as infringements on human rights.
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