Earlier this week, Daily Maverick published a column by Jared Sacks on the evictions of several shack-dwellers in the Western Cape. Among other things, Sacks raised the question of whether the evictions were legal. This is the City’s response in full, which we publish in the interest of broader debate.
The column by Mr Sacks on 6 May 2013 refers:
The City of Cape Town is committed to providing a safe and habitable living environment for all of its residents, especially the poor.
We are keenly aware of the substantial housing needs, not only in Cape Town, but in South Africa as a whole. As the latest census figures have shown, the population of Cape Town has grown by close to 30%, the second highest growth rate in South Africa. The City’s housing database shows that approximately 400,000 people have expressed a need for government-subsidised housing.
In this context we have to make sure that we provide housing in a fair and organised manner, especially recognising that some people have been patiently waiting for housing for a number of years.
We are sympathetic that people are desperate for housing, but we cannot allow this desperation to result in people illegally occupying any piece of open land.
The legislation, including the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, gives a landowner the right to protect their land against unlawful occupation – taking possession of land without the landowner’s permission, and that the landowner has the right to protect their land from illegal invasion.
In terms of what is referred to in the legal fraternity as counter-spoliation, a landowner may resist illegal attempts to disturb their possession and if deprived, may exercise self-help to regain possession of their land. i.e. the City’s Anti-land Invasion Unit may continue to dismantle illegally built structures every time they are erected and before they are occupied.
A case in point is the recent incidents at Marikana informal settlement, where people, whose plight for housing we recognise, repeatedly illegally erected rudimentary shelters which, before they could be properly occupied, were dismantled by the City’s Anti-Land Invasion Unit.
Some commentators have referred to the need for the City to obtain a court order to remove people who illegally occupy its land. A court order is only required for the dismantling of occupied structures. In this case the structures which were dismantled were all still in the course of being erected and were not occupied; even though residents may have brought items on site to make it appear as if the structures were occupied.
As indicated above, the shelters erected during the land invasion were neither complete nor occupied and thus do not constitute a home as per the Constitution or the relevant legislation.
If the City believes that a particular piece of land is vulnerable to illegal occupation it may approach the court for an interdict to stop further illegal occupation of its land. This is a step which the City has taken in the past, but the law is still clear that the City has a right to protect its land from illegal occupation without a court order in terms of its right as the property owner.
In the face of continued threats to City-owned land, often designated for housing or community facilities, the City must act if it is to meet the needs of those who have asked for government housing assistance – for the City not to act and protect its land would be a betrayal of those who are following the correct legal channels.
Councillor Tandeka Gqada, Mayoral Committee Member for Human Settlements DM
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