A man who was dragged naked from his Khayelitsha home during the height of lockdown by the City of Cape Town’s Anti-Land Invasion Unit (ALIU) has won a major victory in his challenge against the city.
The Supreme Court of Appeal (SCA) ruled the City’s tactic of destroying homeless people’s shacks and personal items was “capricious and arbitrary and cannot be legally countenanced”.
The judgment provides much needed clarity on how municipalities are allowed to respond to homeless people’s setting up dwellings on unoccupied land.
The city tried to argue it was using a remedy known as “counter-spoliation”. This is where, in certain circumstances, a person who is in danger of having had property or possessions unlawfully infringed on (“spoliated”), can take action to prevent spoliation.
In this instance, the city argued that homeless people were unlawfully occupying public land, which belongs to the city. As a result, demolishing structures and removing homeless people was basically “taking back” what it says is its property.
However, in 2021, the Cape Town high court ruled that the city had “incorrectly” applied counter-spoliation. This was evident, the court said, in ALIU’s conduct that caught nationwide attention. In 2020, Bulelani Qolani made national headlines after he was dragged naked from his home during a ALIU raid in Khayelitsha. Alongside the SA Human Rights Commission (SAHRC), the EFF and Abahlali BaseMjondolo (as amicus), Qolani successfully challenged the city’s conduct.
The city appealed.
The SCA said on Wednesday the only question to determine was whether the city’s reliance on counter-spoliation held water. Writing for a unanimous court, SCA judge Constance Mocumie said counter-spoliation is only lawful “when the taking of possession is not yet complete”.
“Once a spoliator has acquired possession of the property,” Mocumie ruled, “counter-spoliation is no longer permissible.”
Mocumie said the city could only “counter-spoliate before the person has put up any poles, lines, corrugated iron sheets”. However, once a structure is already up, the homeless person has taken possession of land — even if he did so unlawfully. But the city cannot counter an unlawful action with an unlawful action of its own, by taking “the law into its own hands”. Other remedies have to be used, such as court-sanctioned evictions, Mocumie said.
Mocumie noted that all the evidence showed structures were “already erected” on the city’s land that the ALIU destroyed, claiming counter-spoliation. Further, the city’s claim it only destroyed unoccupied structures was also found lacking, pointing to Qolani as an example.
“The city must invest in training and equipping the ALIU and its relevant personnel with sensitivity training,” Mocumie concluded, “to recognise that people’s rights should be respected and they should not be abused during removals.”
She dismissed the city’s appeal with costs.
The judgment clarifies that municipalities cannot claim counter-spoliation where structures are already in place and must use other, lawful remedies, such as eviction orders.
In a statement on Thursday, the EFF said it “welcomes the judgment”, noting “land remains central to the freedom of our people”.
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