On Wednesday 15 July, Judge Gayaat Salie-Hlophe ordered in the matter of Hangberg resident Ginola Phillips and the City of Cape Town and Mayor Dan Plato that they must rebuild his Wendy house within 48 hours of the order.

His Wendy house, in Karbonkel Road, was torn down twice – initially on 11 June by the Anti-Land Invasion Unit (ALIU) and again on Friday 19 June.

Phillips was alerted by community members that his structure was being demolished in the first round. He could not stop the ALIU in its tracks and later rebuilt his Wendy house. But on Friday 19 June officials of the city council again arrived at his home, and demolished it for the second time.

Reading out an eight-page judgment, Salie-Hlophe described the City’s action as deplorable and inhumane, adding the demolition was heartless and done with scant regard for Phillips’ safety, security and health, particularly in light of the Covid-19 pandemic.

Phillips’ urgent application was brought by local activists Lee Smith and Roscoe Jacobs. A petition signed by 147 members of the community was also placed before the court and the matter was argued by legal representative Vernon Seymour.

Salie-Hlophe said the actions of the City and the mayor in repeatedly demolishing the home of Phillips was a sore and painful reflection of a failure to appreciate the plight of poor communities, and what can be described as objectifying the indigent as having no individual rights worthy of recognition.

“Mr Phillips’ construction of his home, together with being in peaceful and undisturbed possession thereof, establish his constitutional rights which have been zealously grabbed from him without care of his dignity and other enshrined values of our Constitution,” she said.

It is imperative that the City goes about its affairs and utilises manpower and infrastructure in a constitutional and lawful manner to achieve its goals, said the judge.

Trampling on the Bill of Rights in its efforts to do so is not permitted, Salie-Hlophe said. In the absence of an eviction order stating that it is just and equitable to do so, demolitions of homes cannot be carried out lawfully and at present, during lockdown Alert Levels 3 and 4, she found.

The court also found the City and the mayor did not follow the procedures prescribed in the Prevention of Illegal Eviction from and the Unlawful Occupation Land Act, (PIE Act). 

Salie-Hlophe put it bluntly: “They acted unlawfully.”

The SAHRC also sought the court to review and set aside the City’s decision to instruct its Anti-Land Invasion Unit to demolish structures without a court order, declaring the existence of the ALIU, alternatively the powers granted to it, to be unlawful and unconstitutional.

The City claimed Phillips’ property was on an environmentally protected sand dune. But there was no suggestion that other nearby structures similarly caused harm.

Phillips said: “I’m quite happy with the judgment. I’m also happy for what the judgment means to the future generations. Getting back my Wendy house is unbelievable. I never thought it was possible.”

Jacobs said the judgment highlights that the City is not above the law and he called on the City to hold those that have taken this decision and implemented it accountable because they have violated their communities’ human rights.

Mayor Dan Plato was not happy with the court ruling, saying the rebuilding of the structure would halt the planned development of the site for a recreational facility. This would have included a five-a-side soccer pitch.

The City, Plato said, had offered two alternative sites for the structure to be built, adding that notice was given at the time not to erect the illegal structure. 

The City is considering the judgment as well as the valuable community facility which has now been placed in jeopardy, as Plato put it.

Meanwhile, the urgent application of the South African Human Rights Commission (SAHRC) seeking an interdict to restrain the City from demolishing any informal dwelling, shack or tent, whether occupied or unoccupied throughout the City Metropole, scheduled for Wednesday 15 July, has been postponed.

The SAHRC contends that evictions or demolition cannot take place while the State of Disaster remains in place, except in terms of an order of court duly obtained.

The SAHRC also sought the court to review and set aside the City’s decision to instruct its Anti-Land Invasion Unit to demolish structures without a court order, declaring the existence of the ALIU, alternatively the powers granted to it, to be unlawful and unconstitutional.

The City’s Tender 308S/2019/20, “Demolition of illegal and formal and informal structures in the City of Cape Town”, has also become a bone of contention in the litigation. The SAHRC wants the court to interdict the City and restrain it from considering, adjudicating and awarding any bids received in response to the tender.

The urgent application from the SAHRC is supported by the Housing Assembly and Bulelani Qolani, who was dragged naked out of his shack in Empolweni, Khayelitsha on Wednesday 1 July. The City has indicated it will oppose the matter. DM/MC