The City of Cape Town has been ordered to negotiate with the owners to purchase the land on which the Marikana informal settlement is located. Judge Chantal Fortuin handed down this landmark judgment in the Western Cape High Court on Wednesday, ensuring that about 60,000 people will not be evicted from their homes in Philippi East.  The City has between one and two months to negotiate with the various owners of the land and needs to report back to the court immediately after this.

Fortuin dismissed all the eviction applications against the residents of Marikana. She said that in deciding this matter she was “faced with a historical, social and economic situation which cannot be ignored”.

“The occupiers moved to these properties after being evicted from various areas where they lived under desperate conditions. Unlike other people from Cape Town, these occupiers did not, at the time, and at present, have the luxury of choosing where to settle with their families. They settled on these properties out of desperation,” she stated.

In her judgment, Fortuin also said that the City, and national and provincial ministers of housing had infringed on the landowners’ constitutional right to property. In addition, the City, and the national and provincial ministers of housing had also infringed on the occupiers’ rights to housing, by failing to provide land.

A number of people own various portions of the land that has come to be known as Marikana, but all the owners had asked for the state to purchase the land from them. Most of the Marikana residents, who were represented by the Socio-Economic Rights Institute (SERI), wanted the land to be purchased by the City, or expropriated if an agreement on purchasing couldn’t be reached. None of the owners favoured expropriation.

In her judgment, Fortuin said it was undisputed that the City could not provide alternative accommodation for the occupiers. But, she said, she agreed with the occupiers “that none of the state respondents have given an acceptable reason why, instead of moving such a large number of people, they cannot simply acquire the land the people are currently occupying”.

The court has to perform a “balancing act”, she said, in ensuring that the occupiers’ rights to housing are enforced without encroaching on the rights of the owners to property, or by overstepping the boundaries of the doctrine of separation of powers.

The judgment differed slightly for each of the owners of the land. Fortuin said that one owner, Iris Fischer, could not be treated the same way as the other owners. She had not acquired the property for commercial reasons and “is an elderly woman who is bearing the responsibility of the state by providing land” to the occupiers.

In the case of Fischer, Fortuin ordered that if the City and Fischer cannot reach an agreement on the sale of the land in a month, they must return to court. Here, they must detail their negotiations, in particular, why the value of the property was not determined on the basis of the property being vacant land “thereby disregarding the informal settlement”.

In the case of the owners of the rest of the land, if they cannot reach an agreement with the City within two months, they must report back to the court explaining whether expropriation of the properties was considered, and if not, why not.

In the case of all the owners, if the City is unable to afford to purchase the land, the national and/or provincial ministers of housing have been ordered to provide the funds to do so.

The costs of the applications are to be paid by the City and the national and provincial housing ministers.