Johnathan Paoli
THE Economic Freedom Fighters (EFF) have welcomed the Supreme Court of Appeal’s decision to dismiss the City of Cape Town’s application to overturn a Western Cape High Court ruling, which found the removal of land occupants in Khayelitsha, during the Covid-19 pandemic unlawful, unconstitutional and inhumane.
EFF national spokesperson Leigh-Ann Mathys said on Thursday her party hailed the judgement and would remain on the side of Africans, defending them from white supremacists who are now in government with the former liberation movement, the ANC.
“The land remains central to the freedom of our people, and the EFF will always champion its return to its rightful owners,” Mathys said.
In her judgment SCA Judge Connie Mocumie said the city was wrong in applying the remedy of “counter-spoliation” when it demolished the shacks of land occupiers.
Counter-spoliation allows for the recovery of land that has been unlawfully possessed as long as it was done immediately, which would be regarded a mere continuation of the existing breach of the peace and consequently condoned by law, she said.
The city argued that it could use the remedy at any stage before a fully constructed informal structure becomes occupied as a home.
However, Mocumie said it was evident from an affidavit by a city official that structures had already been erected when the Anti-Land Invasion unit (ALIU) arrived.
“This meant that the possessional element was already completed. The structures had assumed permanence and the invaders were therefore in peaceful possession,” she said.
Mocumie also found that it was thus unreasonable to remove the invaders and had it been sanctioned, it would have amounted to the city being allowed to take the law into its own hands.
The court said that such evictions could only take place within a narrow window without having to go to court.
The Western Cape High Court previously ordered an urgent interdict to stop the city from evicting people who had occupied vacant land without permission during the lockdown, and emphasised the need for just and equitable eviction processes.
The application was brought by the South African Human Rights Commission (SAHRC), the EFF, among others, with shack-dwellers’ movement Abahlali BaseMjondolo as friends of the court.
The court case followed the widely publicised removal of Bulelani Qolani, who was dragged naked from his shack during the evictions, which was carried out by the ALIU.
Mathys said Qolani’s eviction was not simply dehumanising, but bore a painful resemblance to Apartheid era evictions.
“This eviction would have been inhumane in any context, but the fact that it occurred during a state of national disaster and a global pandemic, was proof of the little regard the DA-led City of Cape Town has for black life and the rule of law,” she said.
The unit destroyed the homes of the residents in Empolweni, Emfuleni, and Hangberg, including their belongings.
The city has not responded to the ruling, nor declared its intention to approach the country’s apex court at the time of publishing.
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