Opinionista Jordan Griffiths 20 October 2020

Illegal land occupations undermine effective functioning of local government across South Africa

The interdict granted against the City of Cape Town by the Western Cape High Court has undermined the functioning of local government across the country. It has effectively declared open season for people to build structures wantonly on state-owned land.

In August the issue of land invasions came to the fore after the South African Human Rights Commission (SAHRC) brought an interdict against the City of Cape Town for the manner in which the Anti-Land Invasion Unit (ALIU) unit was removing people who illegally occupied land in the city.

During lockdown, the City of Cape Town started witnessing a sharp spike in land invasions and deployed the unit to demolish and evict individuals who were illegally occupying public land. It often requires a rapid response because if swift action is not taken immediately, single structures can soon balloon into an overnight settlement which then becomes far more complicated to move against, both legally and practically. These processes gained national news when Bulelani Qolani was forcibly removed from his dwelling while naked.

In the legal papers filed by the City, it stated that it “appears to be a calculated and deliberate act to thwart the law enforcement action and is the latest trend whereby people undress themselves when police conduct operations in response to illegal actions; the intention being to cause the police to discontinue the operation due to the discomfort created by the actions of the person’s disrobing”.

The City faced sharp rebuke for its action. Qolani became the third respondent in the court application. The SAHRC ultimately succeeded in its interdict against the City of Cape Town, getting the Western Cape High Court to rule that:

  • The city was interdicted from conducting anti-land invasion operations while the state of disaster was in place unless a court order was obtained. Important to note, this order applied to operations against both occupied and unoccupied structures;
  • Any operations that are conducted must be done to respect the dignity of the evicted persons, the use of excessive force is prohibited as is the confiscating of materials;
  • The City is interdicted from awarding contracts on Tender 308S/2019/20 “Demolition of illegal and informal structures in the City of Cape Town”;
  • The City must return all the building materials and personal possessions that were seized to those evicted; and
  • The City is ordered to pay R2,000 to each person who has laid a claim in terms of the loss of personal belongings.

The implication of the first point of the interdict is exceptionally impactful and it is worth highlighting the consequences behind it.

Often individuals who build structures on open state land do so cheaply with limited materials to create the semblance of a dwelling. The reason they do this is because they don’t take occupation of the structure. They wait and see whether the municipality takes any action to demolish it. If no action is taken, they either move in and build out the structure or claim that parcel of land as their own and either sell or rent it to another individual, in the process encouraging the construction of more such structures.

This court interdict has effectively prohibited the City of Cape Town from demolishing illegally built structures that are not occupied unless the city has a court order.

It’s unclear whether the judges in question truly understand what they have done and the level to which they have undermined the functioning of local government across the country. They have effectively declared open season for people to build structures wantonly on state-owned land.

The judgment drew an outcry from the leadership in the City. Malusi Booi the Member of the Mayoral Committee (MMC) for Human Settlements and Executive Mayor Dan Dan Plato wrote about the impact that this judgment would have on the City’s ability to counter land invasions, highlighting how the land invasions are often criminally orchestrated, done deliberately to derail City projects or drive political agendas. The City of Cape Town is appealing directly to the Supreme Court of Appeal to overturn the decision by the Western Cape High Court.

In the criticisms that have been launched against Booi, Plato – and at times MMC for Safety and Security JP Smith – have been described as callous in a Daily Maverick article the headline suggested the City is “engaged in a war – against its own citizens”.

It is criticism that is deeply misplaced and fails to understand the scale and impact that land invasions have on the country.

The facts are that land invasions are not unique to Cape Town, they are an endemic problem affecting municipalities across the country, particularly in the major metropolitans which are witnessing growing levels of urbanisation. The ruling against Cape Town is a legal matter that has ramifications for every municipality and how they are attempting to protect and safeguard public land.

It is critically important that the City of Cape Town succeeds in its court application.

South Africa and its cities have a multitude of spatial issues, many of which are a result of apartheid spatial planning. The housing-delivery model in the country is deeply flawed with backlogs in the housing lists that run back years. With national policy on housing still focused primarily on the construction of low-cost RDP houses far removed from urban centres, this problem will persist for decades.

Unless the housing model in South Africa is totally overhauled to that of high-rise and high-density infrastructure, the government will simply continue building low-cost housing settlements far removed from economic hubs, reinforcing apartheid spatial planning.

One of the drivers behind land invasions is the political frustration at this process. In some cases, communities who have been waiting for years for a house, take matters into their own hands. They identify a piece of land and erect structures on it. In other cases rapid urbanisation and growing populations result in settlements expanding and mushrooming outwards.

Often when this occurs, there are supposed community leaders or politically connected individuals who openly sell parcels of state land, despite the fact that they have no legitimate authority to do so, and have no title deed or any way to legalise this transaction.

Desperate citizens who need a place to live often pay these fees and then begin building a home for themselves. The land in question may not even be suitable for people to live on, it could be a wetland or prone to flooding. In December 2019, for example, over 700 shacks in Eerste Fabrieke, an informal settlement near Mamelodi, part of the City of Tshwane Metropolitan Municipality, were washed away in floods.

Illegal land invasions and development of these settlements create immense planning challenges for municipalities. Once such a settlement is established, the residents will often tap into neighbouring infrastructure running illegal electrical cables and causing electricity outages.

Without services like waste collection in place or adequate sewerage infrastructure, further problems emerge with regards to pollution and sanitation. Municipalities then install chemical toilets and send in water tankers to prevent a health crisis which these citizens presume means their settlement is now legitimately established – which it is not. Then, when the illegal electricity connections overload the system, the municipality must go in and remove them, often resulting in violence.

This scenario is happening all the time, everywhere, in municipalities across the country, and particularly in the major metropolitans. It is endless and circular – just as one settlement is dealt with, another appears. Municipalities are continuously faced with assessing which of these should be demolished and which could be formalised and managed into the future.

However, aside from the desperation that drives land invasions, in many cases criminals or political parties are actively invested in driving this behaviour, either through extracting fees from the sale of land parcels or by trying to gain political points by offering protection to those who have unlawfully occupied state land.

One issue in particular which arises from these scenarios is when an area is earmarked for commercial or economic development. In some cases there are deliberate attempts to set up illegal structures on this land in an effort to then extract concessions from the developers. Often the community members who have been encouraged to set up on this land are not even aware they are being used as pawns in a bigger political game. Municipalities will then often restrict this development information internally lest it get out and be used to sabotage projects.

Housing developments are at risk too, as once they are completed the relevant paperwork must be done to ensure legitimate transfer to the rightful beneficiaries. While this happens, illegal invaders take occupation of the completed structures. Thus, before the rightful beneficiaries can move in, they must first evict the unlawful occupiers of their new homes.

Land is a hotly contested political subject in South Africa drawing immense debate from all parties.

The solution to countering land invasions lies in ensuring that communities have legitimate access to state-owned landed – legitimate being the keyword. This does not necessarily mean building individual houses on a massive scale – this will never solve the problem.

It can be solved by allocating parcels of state land to individuals, many of whom would happily build their own home if they know the area is going to be earmarked for basic services.

It can also be alleviated by changing the entire housing-delivery model to the construction of high-rise, high-density housing infrastructure located near economic hubs.

Illegal land invasions must be countered and stopped. They erode the rights of citizens and fundamentally destabilise the operations and planning of local municipalities. DM

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