Most worryingly, the City has gone as far as fabricating an act of Parliament to present common law tradition as an authentic counterpoint to the PIE Act in order to justify the eviction.
The recent eviction of hundreds of shack dwellers who labelled themselves the Marikana Land Occupation in honor of their “brothers who died there – [because] we, too, are organising ourselves peacefully, and are willing to die for our struggle” – has reached mainstream media outlets with heart-wrenching images of a mother with her one-month-old infant being evicted from their home.
Since their ‘UnFreedom Day’ occupation, I’ve been following the events closely, visiting almost every day and, in my own peripheral role as an activist and supporter of the community, helping their movement access legal representation and organising drop-offs of food and clothing for the most vulnerable affected families.
After having seen many similar evictions for years and speaking to a range of legal minds on the subject, it has become clear that municipal governments all over the country take advantage of the inability of poor communities to represent themselves effectively in the media and access legal representation. They use this vulnerability to flout various constitutional safeguards when evicting shack dwellers and homeless South Africans. Municipalities then frequently go on to publicly assert the legality of their eviction by misrepresenting laws and lying about the facts on the ground.
On Friday 3 May, the City of Cape Town’s Media Manager, Kylie Hatton, issued the statement on the ‘Marikana’ evictions. The full statement is as follows:
On Wednesday 1 May 2013, the City’s Anti-Land Invasion Unit demolished 125 structures in Philippi and on Thursday 2 May 2013, took down a further 11 structures. On Friday, 3 May 2013, four structures were removed.
This was done in accordance with the Protection of the Possession of Property Act, which does not necessitate a court order. However, residents were verbally warned prior to the removal of the structures.
The City of Cape Town will continue to monitor and take action in terms of counter spoliation (as per the above mentioned Act) to protect its land from being illegally occupied.
It must please be noted that the City did not remove the homes people were staying in. The Anti-Land Invasion Unit removed illegal unoccupied structures and the materials that were being used to build them.
Yet, consulting with a number of renowned experts in the field of property and evictions yielded a number of concerns and contradictions with the statement.
Sheldon Magardie, an experienced laywer and Director of the Cape Town office of Legal Resources Centre, was blunt when I asked him about the Act which Kylie Hatton cites: “There is no such law called the Protection of the Possession of Property Act.” Advocate Stuart Wilson, who is the Director of the Socio-Economic Rights Institute and teaches Property Law as a Visiting Senior Fellow at Wits, concurred that in South Africa, no such act exists.
Not only is this law fabricated by the City or whomever has advised them, but there are actually two South African legal documents being ignored by the City, which explain exactly what the government should do when land has been occupied: the South African Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) of 1998. The Section 26(3) of the Constitution states that “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” The PIE Act legislates the procedure for a legal eviction of the court.
Stuart Wilson goes on to explain that what the City is attempting to do in its argument is assert “counter-spoliation…a common law tradition dating back to Roman times.” Common law says that legal authority is always required to force a possessor of property to part with that property (regardless of whether that person has the right to that property). Counter spoliation, an exception to this rule, “permits a person who is in the process of having property taken from them to immediately take that property back without a court order…[in other words] they never really had the property in the first place – at best they were in the process of trying to snatch it away from you. What the City seems to be saying – rather ham-fistedly – is that it was entitled to take its land back immediately, without a court order, because the ‘invaders’ were, at best, only in the process of depriving the City of possession of the land.”
However, as Wilson, Magardie and others have explained, counter-spoliation does not apply to the eviction of people from their homes – whether or not those people are deemed ‘squatters’ or even ‘illegal land grabbers’ as per the 2004 case Rudolf v City of Cape Town (see this link for a great summary of the findings. In particular, read the first point under The Decision on the Main Application).
Rather, during such circumstances, Wilson says that “it will always be necessary to follow the procedure set out in the PIE Act”. The PIE Act therefore applies in all cases of people occupying land or structures of any kind, even if the City deems such homes to be ‘partially built’ or ‘unfinished’.
Yet, the City is claiming that these shacks were not ‘homes’ but ’empty structures’ that were not occupied. This is a blatant lie. The City’s official guidelines for the Anti-Land Invasion Unit (ALI) defines a ‘home’ quite clearly: “A structure is not a ‘home’ until it has been inhabited by a person or persons who reside in the structure with their belongings and intend to continue doing so”. It then goes on to say that “where the act of taking unlawful occupation has been completed, counter-spoliation will not be permitted”.
Caption: some children relaxing in their home on ‘UnFreedom’ weekend
With regards to all but a small minority, the shacks were occupied with beds, furniture, clothes, food, and yes, with people living and sleeping in them. If this were not the case, then why would the Law Enforcement have removed people and their belongings by force from the homes? Nearly every home required the physical removal of people and their property by Law Enforcement before its destruction by the Anti-Land Invasion Unit. This form of counter-spoliation explicitly requires a court order – otherwise it is illegal.
Caption: Marikana resident’s fully occupied home hours before their eviction Sunday 28 April
As an eyewitness having seen the shacks being occupied and lived in for many days before the evictions (as early as 25 April), as well as watching these evictions on 28 April and 1 May, I know this to be true. More importantly, though, there are more than enough photographs and video footage by a range of people (residents, journalists and even city officials) which prove that families and their belongings were removed from their homes.
Caption: Child taking a nap on Unfreedom weekend in his ‘Marikana’ home
These homes were clearly occupied and therefore the evictions were clearly illegal. The City needs to explain (1) why it is conducting illegal evictions, (2) why it is lying about the evictions by claiming the homes are unoccupied and (3) why it is fabricating laws to justify these evictions.