APPEAL AGAINST CONTROVERSIAL LAND INVASION JUDGMENT UPHELD BY THE SUPREME COURT OF APPEAL

The shortage of housing in the Western Cape has again been cast in the spotlight as the Courts are called upon to balance the rights of private land owners, those of the homeless and indigent and the obligation of local government to provide housing and emergency shelter. The Supreme Court of Appeal has upheld an appeal brought by the City of Cape Town and Ms IA Fischer against a judgment handed down by the Western Cape High Court in terms of which the City was interdicted from dismantling informal structures which had unlawfully been erected on privately owned land. The City was directed to construct temporary habitable dwellings, affording shelter, privacy and amenities for those occupants who had unlawfully erected informal structures on that land.

The dispute arose around orchestrated land invasions which resulted in numerous structures being erected by individuals on privately owned land in early 2014. The City dismantled all structures which were vacant, unoccupied or partially built. The City at all stages contended that the structures were not occupied, and were accordingly not ‘homes’ as contemplated by Section 26(3) of the Constitution. The approach adopted by the City was that if the illegal structures were not homes as envisaged in terms of the Prevention of Illegal Evictions and Occupations Act (“PIE”), it was not necessary to obtain a court order to dismantle them. The occupants argued that the structures were their homes and that a court order was therefore necessary to evict them.

The City readily accepted and acknowledged that it was not authorised to dismantle structures that had become homes without a court order authorising it to do so and hat any structures that were proved to be homes and been dismantled, would be re-built. It also contended that structures that were already built and occupied on the day were left undisturbed. Due to the disparity in evidence the parties agreed that the matter would have to be referred to oral evidence at a later stage, to ascertain whether the structures dismantled were indeed vacant and unoccupied.

The High Court, however, disagreed that the matter required oral evidence. It’s view was that there were legal points that would resolve of the matter. The Court also disagreed with the City’s argument that the test was ultimately ‘whether or not the structures were homes’, and ruled instead that the question was whether the structures were occupied at the time that they were dismantled, thereby arguably extending the PIE Act beyond Section 26(3) of the Constitution – which provides only that no one can be evicted from their ‘home’. The High Court held that the completed structures qualified for the protection of PIE, and as such, the provisions of PIE not having been followed, that the removal of the structures was unlawful.

The Supreme Court of Appeal disagreed. It upheld the appeal against the declaration of unlawfulness of the dismantling of the structures, as well as the order that the City reconstruct them. It ordered that oral evidence was necessary before the Court could competently come to a final decision, and remitted the matter back to the High Court for the hearing of that evidence. The reasons for the decision will be published in the written judgment, which should be available soon. The interdict, initially brought by Ms Fischer and the City, prohibiting the erection of any further structures on Ms Fischer’s land, has been extended to 1 September 2014.

The City and Ms Fischer are represented by Fairbridges attorneys. The Legal Resources Centre acts for the Occupiers.

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