Supreme Court upholds right to protect property from unlawful occupation
11 July 2024
The City of Cape Town welcomes the rejection – by both the Supreme Court and High Court – of a bid by the Economic Freedom Fighters (EFF) and the South African Human Rights Commission (SAHRC) to strike down the existing legal right of landowners to protect property from unlawful occupation attempts without a court order. Both courts have upheld the right of counter-spoliation – the act of retaking property in the process of being taken away – as lawful and not unconstitutional. While the courts have rejected the applicants’ widest and most dangerous attacks on property protection rights, the City remains concerned about the court’s interpretation of the narrow timeframe for landowners to counter-spoliate, and the City’s appeal in this regard was dismissed. It must be noted however that the SCA ruling does point to the potential solution being the reforming of the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act.
As with the High Court, the SCA has not agreed with arguments by the EFF and the SAHRC that legal protection under the PIE Act begins the moment a person merely enters a property with the intention to seize it.
Instead, the SCA found that City personnel may make an on-site assessment of whether counter-spoliation is an option to stop an invasion of property in real-time, before resorting to obtaining a court order.
The continued protection of public land by the City, including its Anti-Land Invasion Unit and private contractors, by the use of counter- spoliation, has been acknowledged by the SCA as lawful.
The applicants had further wanted the well-established legal right – known as 'counter-spoliation' – declared unlawful. This would have completely removed the existing ability of owners to lawfully retake possession of their own seized property, without approaching a court first.
The City argued that this right of counter-spoliation is both constitutional and vital for the protection of public land from mostly well-organised unlawful occupation attempts.
This case originated during the height of lockdown, at a time when the City conducted 993 anti-land invasion operations in 2020/21 in response to large-scale orchestrated illegal occupation attempts, which led to the formation of some 159 settlements, mostly on uninhabitable, unserviceable land. Over the last five years, the City has responded to protect around 3 000 parcels of land.
It is not feasible to follow lengthy court processes before responding to coordinated invasions, which are often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections. In these instances, fully-built structures can even be dropped onto sites and furniture thrown in to create the impression of a long- established 'dwelling'.
In a lengthy judgment exploring complex issues, the SCA interprets counter-spoliation to be applicable in the following circumstances:
'at the level of general principle - a municipality, might be able to successfully counter-spoliate when homeless people invade its unoccupied land in certain circumstances. It will be justified to do so, without resorting to the mandament van spolie or an interdict or under PIE, because counter-spoliation is not unconstitutional. It remains part of our law until determined otherwise. However, it must do so instanter within a narrow window period, during which counter-spoliation is legally permissible. The window closes and the recovery is no longer instanter when the despoiler's possession of the land is perfected.'
The City is assessing the above finding and has always argued that a timeframe close to instant may render protection of immovable property via this method all but impossible in practice, especially in instances of well-organised illegal land invasions.
The City is further assessing the court's dismissal of the City's appeal against a finding it had not lawfully applied counter-spoliation in specific localised instances during the height of large-scale orchestrated land invasion attempts, particularly during the hard lockdown in 2020.
'It is important for the state, and any landowner, to be able to protect property from organised invasion in real-time, and for this reason we welcome the SCA upholding counter-spoliation as a legal right, even as we still assess various aspects of this complex judgment. In the end, the City must protect municipal land which is planned for valuable purposes to serve future generations of Capetonians. We want Cape Town to be a better place for all, even when it is double the size, and we will never stop advocating for enabling the state to protect land while also upholding the dignity of the vulnerable,' said Cape Town Mayor Geordin Hill-Lewis.
Importantly, the SCA further explores the potential reforming of the PIE Act to exclude unlawful occupiers from its protection:
"Academics, including Professors Van der Walt, Muller and Marais and Boggenpoel have written extensively on this subject. Amongst the proposals made is that the definition of s 1 of PIE be read down to include invaders under the term 'unlawful occupier(s)'. But that will have huge ramifications for other areas of the law, including property law in general, and cannot be done without input from other branches or agencies of the law, such as the Law Review Commission. It might also require an attack on the constitutionality of PIE, which was not pursued in this case. Ultimately the legislature may intervene of its own accord to, inter alia, change and adapt PIE accordingly. Since these aspects were not addressed before the high court, it would not be appropriate to determine them in this appeal. In the meantime, courts should deal with these matters on a case-by-case basis until those issues are properly raised and dealt with fully, fairly and pertinently".
The City will study the complex judgment and consider whether any aspects of it should be taken on appeal.
End
Published by:
City of Cape Town, Media Office
