I have previously written in Daily Maverick about the occupation of Cape Town social enterprise Communicare’s building. There was confusion at the time about what legislative framework should be applied to prevent the invasion of the building.

The SA Police Service (SAPS) reportedly claimed that Communicare must apply to the courts under the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE) to stop the occupation while Communicare believed the act did not apply since their building had not yet been occupied and the attempted “hijackers” were therefore not occupiers as defined in PIE.

Communicare applied for a spoliation order (mandament van spolie), a legal remedy to seek relief to claim back possession for something that has been acquired other than through a legal process. Communicare obtained the relief sought in their application handed down by Acting Judge Tessa le Roux in the Cape High Court on 24 May 2021.  

The question of whether PIE applied to the occupation of the Communicare building or not was argued by the parties. The court eventually made a ruling that it didn’t need to consider the arguments raised in relation to PIE, essentially restoring possession of the building to Communicare without applying PIE.

The court did make the comment that in any event the unlawful occupiers didn’t place sufficient evidence before the court to oppose an application for an urgent eviction in terms of PIE, but that appears to have been an aside, and not the basis of the judgment. 

The failure of the SAPS to assist Communicare and prevent the unlawful occupation is referenced more than once in the judgment. And in light of the fact that the court granted the relief sought by Communicare without reference to PIE, the SAPS’s failure to protect the rights of Communicare is even more egregious than it would otherwise have been.

Remember the SAPS allegedly declined to assist Communicare on the mistaken understanding that they were prevented from doing so since, they claim, the organisation should apply to the court under PIE to prevent the invasion. But if PIE doesn’t even apply to the eviction once the occupiers were already in the building, it surely could have been no bar to the SAPS preventing the occupiers from taking occupation in the first place. 

It should be noted that the occupiers are in the process of appealing the judgment. This means that Acting Judge Le Roux’s reasoning will be reconsidered on appeal. In finding that PIE needn’t be considered, the court relied on a judgment by Judge Lee Bozalek and Acting Judge Babalwa Mantame, wherein the court said that “this judgment should not be understood as suggesting that the mandament van spolie remedy is effectively excluded in all circumstances where land or buildings are occupied by alleged spoliators. Each case must be determined on its own facts and circumstances.”

But the portion of that judgment immediately preceding the quoted part should perhaps have been given slightly more consideration. It reads as follows:

“In the present matter, the facts as presented by the respondents indicating that the premises which they occupy are their homes are somewhat scanty and certainly open to challenge. In my view, however, they are sufficient to meet the threshold necessary to defeat the relief sought by way of the mandament van spolie application, particularly bearing in mind the appellant’s initial references to the respondents as ‘unlawful occupiers’ and the absence of any indication that it would contend that the respondents could not claim the protection of PIE since the occupied premises were not their homes.” 

The question of whether PIE applies or not will therefore be considered again, and the court hearing the appeal may come to a different conclusion. One can only hope that there is clarity once the appeal is determined. In the meantime, the South African populace needs to simply hope that the SAPS can get its ducks in a row, to prevent further situations such as the present. 

The consequences of the SAPS’s failure is manifest in the amount of time that has now passed since the occupiers took occupation of the Communicare building. The building began to be occupied around the end of February 2021 and with the appeal now pending, the final determination of this dispute is nowhere in sight. 

Even worse is that the application was launched by Communicare on an urgent basis, and it has still taken this long. Unfortunately, that is how long these processes inevitably take. And normal eviction applications brought under PIE can take even longer. Also with each further legal step, legal fees run up and loss of potential income increases. 

The lack of clarity on the correct procedures to be followed in the case of an unlawful occupation/hijacking, the time it takes for even an urgent application to be determined, and the lengthy appeal process all underscore the importance of prevention, and by correlation, the need for the SAPS to be able to protect parties’ rights.

The stakes are potentially astronomical, and therefore South Africans cannot afford for the SAPS to fail in its duty to protect. DM