Cape Town - The Western Cape government will make submissions today in the case brought by the South African Human Rights Commission (SAHRC) and the EFF to strike down the existing legal right of landowners to protect property from unlawful occupation attempts without a court order.
The case involves the City’s controversial eviction of Bulelani Qolani from his Khayelitsha shack in June last year.
The court is hearing the arguments on the principle of counter-spoliation, a legal remedy that allows a person to forcibly re-take possession of property unlawfully taken from them, following the inability of the two previous judges to reach consensus in the matter last year.
Lawyers for the Province, which joined forces with the City and police in the case, will argue that there is no need to amend the common law of counter-spoliation, as sought by SAHRC and the EFF.
Their argument is that counter-spoliation exists as a constitutional means for landowners to prevent unlawful land invasions without first having to approach a court to do so.
The SAHRC and EFF argue that a court order should first be obtained before a landowner can act to stop an invasion of property in real-time. The matter will be picking up from where it left off on October 14, which was the last day of term for the high court, which then went into recess.
With the courts now back from their break, the three judges involved in the case, judges Vincent Saldanha, Mokgoatji Dolamo and Hayley Maud Slingers, have reviewed their diaries and selected dates and times at which they can hear the case.
Before the adjournment, the City argued that it was not feasible to follow lengthy court processes before responding to co-ordinated invasions. The City claimed that such invasions were “often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections.”
They said that in many instances, fully-built structures could even be dropped on to sites and furniture thrown into them to create the impression of a dwelling.
Mandated in the matter by the provincial executive council Human Settlements MEC Tertuis Simmers said: “It’s unfortunate that we’ve had all these delays and postponements.
“But in such an important case, it is critical to ensure we are given the space to be heard, even if this means incurring the added cost and time of additional days in court.
“We maintain that there is no need to amend the common law of counter spoliation.
“Particularly since on a proper interpretation it recognises the need and benefit of enabling owners to act immediately in order to retake possession of unlawfully seized property in a way that is both reasonable and constitutional,” said Simmers.