Two months after Bulelani Qolani was dragged naked from his shack on Wednesday 1 July, the City of Cape Town has only concluded a preliminary investigation, while the SA Police Service (SAPS) hasn’t arrested or charged anyone yet. 

And the SAPS, during the recent spate of evictions, has protected the Anti-Land Invasion Unit (ALIU) from residents while not protecting residents from the ALIU. 

These were among issues raised during arguments by advocate Norman Arendse, appearing for the SAHRC, at a virtual hearing over two days, Thursday 20 August and Friday 21 August. Advocate Tembeka Ngcukaitobi appeared on behalf of the EFF while the City was represented by advocate Leon Rosenberg, and advocate Renata Williams represented the SAPS. The matter was heard by judges Rosheni Allie and Yasmin Meer.

The SAHRC and EFF jointly sought an urgent interim interdict against the City of Cape Town to halt all evictions and demolitions of structures during the National State of Disaster. They asked that no evictions or demolitions take place during this period, that the City’s decision to instruct the ALIU to demolish structures without a court order be declared unlawful and unconstitutional, that the City’s tender for the demolition of illegal formal and informal structures be set aside and that the SAPS be ordered to ensure that the demolition of structures or evictions takes place under judicial supervision.

Arendse said the City’s argument is that two wrongs make a right: The illegal occupants entered the land illegally and the City can now remove them without a court order.

“They [the City of Cape Town] have become a judge in their own courts. They take the law into their own hands and they decide whom to evict, which structures to demolish, what constitutes a home, what constitutes a residence.

“The only remedy when it comes to the City is stop them from doing it and if they want to do it, they must come to court. The best remedy is to do it under protection of the courts so that the citizens know that where this happens the City needs to go to court to get a court order,” Arendse said.

He added that the City’s contention is that there is no need to provide an interdict that requires it to respect people’s right when executing evictions. This, he said, is cold comfort to his clients when one considers that the City has not explained how the violation of Qolani’s human rights could have occurred when the officials knew they were being filmed.

“What does this show us? This shows these officials are used to it, they are used to being filmed when they abuse people they evict from structures and shows that it is not an isolated incident and shows an institutional problem.

“These officials either assumed they can do what they did because they were permitted to do so by their employees or that such behaviour is otherwise permissible and that they will face no consequences for their actions,” he contended.

He submitted that the City’s defence of “a few bad apples” is no defence, arguing that the entire City management, from the mayor down to the officials performing demolitions and evictions, is at fault.

“The City also failed to address our arguments regarding the allegations that what happened to Qolani constitutes torture. …[T]he City… has publicly blamed Qolani for his own torture. In other words, they are disciplining some of the officials, but, on the other hand, they have already prejudged the issue by saying Qolani is the author of his own misfortune.

“Worse, the City appointed the lawyers on record to conduct a so-called independent investigation of the matter. Nearly two months down the line, despite freely available footage, they have only concluded a preliminary investigation. It tells us they don’t actually take this matter seriously.

“On behalf of Qolani we have requested the identity of the officers but they have refused to do so, hiding behind some sort of sub judice principle…. [T]he City is more interested in protecting officials who abused our citizens and… the City refuses to be accountable for their conduct.”

Lambasting the police reluctance to intervene during the Qolani matter, Arendse argued that the SAPS has a duty to investigate the alleged crime of torture, a duty that arises from the Constitution read with the International Criminal Court (ICC) Act.

“It is [the SAPS’s] duty to investigate what was clearly a crime. There has been no arrest and nothing has been said by the police that this kind of treatment is unacceptable and that the perpetrators of this crime will be brought to account,” he said.

Presenting the case for residents of Mkaza and Mfuleni, Ngcukaitobi said that when the City demolishes occupied or unoccupied structures it must do so under judicial supervision. And any eviction or demolition by valid or lawful court order must take place in accordance with the law and the Constitution and in the presence of the SAPS.

Stating the City’s case, Rosenberg argued that the interim relief sought is framed as an interdict to prevent the City demolishing structures without an order during the present State of Disaster, but is in fact a final interdict for a limited period.

He argued the court was effectively being asked to sanction a situation where land occupiers can move on to a property with no entitlement for the property owner to prevent that.

“Effectively, what the court should be careful about conferring in the interim, even if it’s for weeks, is the kind of shield that would entirely disentitle and disempower property owners from protecting their property. Minister Lindiwe Sisulu has repeatedly said that land incursions are a peril that must be guarded against,” he said.

Defending the position of the police, Williams said if a crime happens in the presence of the SAPS then they must police that. 

In addition, “There is not a single scrap of evidence before the court to suggest that SAPS protects the ALIU from residents and that they don’t protect the residents from the ALIU.”

Presenting the case for residents of Mkaza and Mfuleni, Ngcukaitobi said that when the City demolishes occupied or unoccupied structures it must do so under judicial supervision. And any eviction or demolition by valid or lawful court order must take place in accordance with the law and the Constitution and in the presence of the SAPS.

“The conduct of the City should be subject to judicial supervision. The City believes there are a sea of land invaders that are committing criminal acts. But… land invasions are occurring now at a rapid pace, a 14-fold increase between 2018 and 2017. So, land invasions are happening without judicial oversight.

“In other words, the intervention of the courts in the process would do nothing to either stop or encourage land invasions. It is not driven by the knowledge that a court is present or not present, it’s simply driven by homelessness. That is the driver of invasions,” he told the court.

“The order that is sought is not an order putting an end to demolitions, it is an order that regulates the process by which the demolitions take place and to subject it to judicial oversight.” 

Judgment was reserved. DM