Maverick Citizen: Right of Reply

It is vital that Cape Town is able to protect public land from invasion, says city’s mayor 

By Dan Plato 9 September 2020

CAPE TOWN, SOUTH AFRICA - AUGUST 18: Law enforcement, Red Ants and staff from Cape Nature evict illegal occupants from Cape Nature land in Khayelitsha on August 18, 2020 in Cape Town, South Africa. It is reported that the new informal settlement had been named Covid and Sanitiser. According to reports, while the Red Ants were breaking down structures that were not occupied some people were busy clearing plots and erecting homes. (Photo by Gallo Images/Brenton Geach)

Cape Town’s ability to protect public land is under severe and imminent threat from a Western Cape High Court application by the South African Human Rights Commission (SAHRC) and the Economic Freedom Fighters (EFF).

To borrow a phrase from the Legal Resources Centre (LRC), it takes an “unfathomable chutzpah” to whitewash the lived experiences of the many thousands of residents who silently bear the severe impact of illegal land invasions [Why the City of Cape Town’s actions are racist, DM 26 August].

But, as a caring City, Cape Town has a duty to stand up on behalf of law-abiding residents and contest the highly publicised legal charge the LRC and others are leading to deal a fatal blow not just to our government’s ability to protect land from illegal invasion, but the right of any and all landowners to do so.

Research shows that the right to private property and the rule of law are two critical elements to economic success. They are both at risk of being actively dismantled, which will further accelerate the economic deprivation and hardship of millions in this country.

You will hear very little about the devastating social consequences of land invasions from the likes of the LRC and other NGOs in the same stable, including Ndifuna Ukwazi and the Social Justice Coalition.

It is quite ironic that the City is accused of “racism” for allegedly “denying” the “individual, discerning characteristics” of these groups and others. I won’t return the smear, save to say that these groupings have a blind spot – to say the least – when it comes to the negative impact of land invasions on residents of all income brackets and backgrounds.

You will rarely, if ever, hear them speak of the R162-million water pipeline to Khayelitsha, which is currently under construction but severely jeopardised by a land invasion on the pipeline’s intended pathway.

Or the everyday struggles of poor residents themselves to prevent illegal occupations in their midst, and the related problems of illegal electrical connections and safety issues that go with it. 

And you will never hear them speak of the hundreds of calls and complaints of residents and NPOs in areas affected by land invasions, who appeal to the City in desperation to help them save initiation sites, parks and land designated for the development of schools, roads, housing, community facilities and otherwise. 

The City will not forget these residents, and our staff will continue to get up every morning to protect public land from illegal occupation.

We thank each one of our officials who put their bodies on the line in the last two months, including the 46 officials who sustained severe injuries on duty in the process.

We all saw the nature of recent Cape Town land invasions in the media and our neighbourhoods, and the huge spike of organised invasion attempts in over 30 different parts of the metro.

Cape Town’s ability to protect public land is under severe and imminent threat from a Western Cape High Court application by the South African Human Rights Commission (SAHRC) and the Economic Freedom Fighters (EFF).

The main application, to be heard at the applicant’s preference only in October 2020, specifically asks the court to declare counter-spoliation unlawful, and for the common law to be amended.

Counter-spoliation is a right that an owner has in terms of South African common law to retake possession of a property that is in the process of being unlawfully taken away. 

The right to counter-spoliate is vital to the City’s land protection efforts, as time is often of the essence in removing unoccupied structures during land invasions, lawfully, without a court order.

For evictions and the demolition of occupied structures, court orders are obtained in line with the law. Part of the City’s appeal against the granting of interim relief focuses on the serious doubt the City’s evidence, including satellite imagery, casts on the allegations of evictions related to this matter.

The City’s right to protect land from invasion is severely limited by the granting of an interdict by Judges Rosheni Allie and Shehnaz Meer, requiring the City to obtain a court order to demolish unoccupied structures, i.e. structures that do not qualify as homes.

It is clear that this sets a very dangerous precedent, especially given what we know about the organised nature of land invasions and the increase in this activity recently.

That’s why, as Mayor, I have instructed our legal team to pursue an expedited appeal to the Supreme Court of Appeal.

If the SAHRC/EFF application succeeds, the impact on all municipalities, and indeed the custodians of State land in our country as a whole, will be devastating.

Court rolls will be flooded with applications by landowners, both private and public, seeking urgent and immediate determinations of whether or not a particular structure – completed or not – is to be regarded as occupied and subject to the requirement of an eviction order as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

Practically, by the time such matters come to court, the property in question would have been lost to illegal occupation. 

It is the City’s experience that even urgent interdicts and eviction applications take months if not years for the courts to resolve, by which time massive settlements have been established outside of any ordered planning process, and in terms of which services and infrastructure do not exist. 

People who simply cannot afford to approach the courts on an urgent basis when their land is invaded will simply lose their land to illegal invasions, in most instances.

Public land intended for housing, healthcare, schools, transport, basic services and community facilities would be permanently lost to unlawful land occupations, with devastating consequences.

It could be that the extent of unlawful land occupation on public land would be extensive to the point of undermining all the State’s housing plans and the Integrated Development Plan of this City, and of all municipalities for that matter, as there would be no means of protecting any land from occupation.

We are a growing city and nation. We owe it to future generations to protect land intended for service delivery and infrastructure.

It is trite that South Africa’s housing backlog seemingly grows year-on-year. This is the consequence of a weak economy, a national fiscus broken by corruption, a less than enabling human settlements legislative framework, and indeed the negative impact of illegal land invasions on housing and infrastructure projects.

In this context we would certainly agree with the LRC that the current systems must be dismantled and fashioned anew, in ways that ensure all people are included”. Radical reform is precisely what is proposed by the City’s draft Human Settlements Strategy, which is out for public comment.

What we can’t agree with, however, is the chaos these pious pipers are attempting to lead our society to in their misplaced zeal.

The SAHRC/EFF application may purport to be related primarily to the national lockdown – “piggybacking on a State of Disaster” so to speak – but the intent and ramifications are far broader. 

We’ll certainly contest it, and we will do so on behalf of all law-abiding residents and for the sake of our country. DM/MC

Alderman Dan Plato is the Executive Mayor of Cape Town.

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