The question thus becomes: does this equally apply in cases where municipalities seek to reclaim property that they believe rightfully belongs to them? The case of City of Cape Town v South African Human Rights Commission explores the remedy of counter-spoliation in an eviction case and provides an answer to this question.

Background of the case

Between April and July 2020, the City of Cape Town’s Anti-Land Invasion Unit (ALIU) (the City) carried out several evictions, from municipal land in Khayelitsha, without court orders. This took place at the height of the Covid-19 pandemic and lockdown, where everyone was forced to stay at home as a safety precaution. The South African Human Rights Commission (SAHRC) approached the Western Cape High Court (HC) to interdict the City from removing the occupiers. The City justified its conduct by relying on the common law remedy of counter-spoliation, which enables one to take back property that has been unlawfully occupied or taken away from them, provided certain requirements are met.

In addressing the City’s justification, the HC focused on the “instanter” requirement of the remedy, which it interpreted to mean instant action to repossess what is taken from the dispossessed at the time of dispossession. The HC preferred this narrow interpretation, which it found consistent with the rule of law. The HC found that the City had not fulfilled the “instanter” requirement and thus could not rely on the remedy because the land already had structures on it and was thus occupied at the time of the evictions. The evictions were thus unlawful as they were not ordered by the HC.

Arguments in the Supreme Court of Appeal

In its appeal to the SCA, the City sought clarity on the interpretation of the counter-spoliation remedy. It argued that it was entitled to remove the occupants because the unlawful occupation of municipal land resulted in interference with the municipality’s possession of the land and that the structures erected were unoccupied at the time of the eviction. The City further argued that seeking a court interdict or order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 (PIE) would have taken long, thus allowing the occupiers to settle on the land. The City also argued that the PIE Act process was burdensome, expensive, and had the effect of prioritising these occupiers over others on the City’s housing list. Because the City would have to provide the occupiers with alternative accommodation, it opted rather to institute the counter-spoliation remedy.

The SAHRC argued that, where the occupiers brought building material onto the land and the City failed to respond immediately to regain possession, it could not invoke counter-spoliation as undisputed occupation would be established. The SAHRC therefore challenged the City’s reliance on counter-spoliation and consequently the City’s removal of the occupiers without a court order under the PIE Act.

Judgment

The SCA found that the remedy of counter-spoliation can only be used “before a person has put up any poles, lines, corrugated iron sheets, or similar structures with or without furniture, which point to effective physical control of the property occupied”. When instituted before any of the aforementioned happens, the recovery is taken simply as a continuance of the ongoing interference and therefore allowed by the law. The Court held that the City could not rely on this remedy to justify the forceful removal of the occupiers from municipal land because it did not act immediately. The occupiers had already established peaceful and undisturbed possession of the land. Because the remedy is likely to violate section 25(3) of the Constitution, it has to be applied in limited circumstances. Once poles, lines, corrugated iron sheets, or similar structures were erected, the land had been taken over by the occupiers and the City had to obtain a court order in terms of the PIE Act to remove them.

Commentary

This case caught nationwide attention due to the inhumane actions of the City’s ALIU who, in evicting Mr Bulelani Qolani, dragged him naked from his shack. Although the judgment focuses on the legal issue of counter-spoliation, the City must be called out as the officers’ conduct spits in the face of the Bill of Rights and the state’s duties to uphold the rights to dignity, privacy, and access to adequate housing when carrying out evictions.

On the counter-spoliation issue, what the judgment means is that the remedy can only be used during an active occupation of municipal property, provided no structures are erected whether partially or fully, during that time. This raises the bar for municipalities as their response to unlawful occupation would need to be swift to rely on this remedy. Often where land is occupied, the occupiers arrive ready with their materials at hand and instantly fix a structure or structures to the land. The requirement for instant response is thus almost impractical. It would need a municipality to have constant surveillance over municipal land, which they cannot do for varied reasons such as staff, technological, and fiscal incapacity. As such, where poles and/or corrugated iron sheets are fixed onto land, even in an incomplete form, that land ceases to “belong” to a municipality for purposes of counter-spoliation.

Several court cases have cemented the requirement of a court order for evictions, therefore, it is rather odd that the City took it upon itself to institute a counter-spoliation remedy, as opposed to going through the court. This is especially so considering the timeline between the occupation and the removals, as well as the fact that it was at the height of the Covid-19 pandemic. Surely the City should have known that section 26(3) of the Constitution, which prohibits evictions from one’s home or having one’s home demolished without a court order, would be in full effect over this period, to protect citizens.

The raising of the bar for using counter-spoliation thus means in practice that municipal evictions may only be carried out with a court order, absent this it is an unlawful eviction. Taking it even further, it is arguable that the effect of this judgment is not only to raise the bar but to remove counter-spoliation as a remedy available to municipalities because of the impracticalities the “instanter” requirement presents.

The implication of the judgment is that court-ordered evictions through the PIE Act are the preferred route available to municipalities. So, whilst the Bible gives us authority to take hold of what has been stolen or lost, the Constitution limits this self-help by giving us processes to retrieve our property within the confines of the law. The legislation applies to all, especially to municipalities who are obliged to respect, protect, and promote the rights in the Constitution.

By Thabile Chonco-Spambo