An Important Judgment in the Supreme Court of Appeal

16 July 2024

Abahlali baseMjondolo press statement

Last week, on 10 July the Supreme Court of Appeal (SCA) issued its judgment in the matter of South Africa Human Rights Commission v The City of Cape Town. The Court found that municipalities have no legal right to evict people who are in the processes of constructing a home (once that construction has begun) without first obtaining a court order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) or obtaining other legal sanction.

Our movement was admitted as a friend of the court (amicus curiae) in the matter and we were represented by our longstanding comrades in the Socio-Economic Rights Institute.

The South African Human Rights Commission (SAHRC) brought the matter against the City of Cape Town after the unlawful eviction of residents of the eThembeni shack settlement in Khayelitsha, Cape Town in July 2020 during the Covid shutdown.

There were many unlawful and violent evictions during the Covid shutdown, including in Durban, but this eviction became a national scandal after Bulelani Qolani was violently removed from his home, while he was naked. This was a cruel and unlawful attack on his human dignity that showed the world just how deeply the South African state, whether governed by the ANC or the DA, undermines the dignity of the poor. In fact it is clear that we are hated.

Our lawyers argued that the city cannot lawfully evict someone whose home is still in the process of construction simply by using the argument of ‘counter-spoliation.’ The court found in our favour on this matter. The court also found that “on the facts in this appeal, the conduct of the City’s personnel did not only constitute a violation of the occupants’ property rights and to their belongings, but also disrespectful and demeaning.”

As comrade Nomzamo Zondo, the leader of SERI, said “I am certain that the judgment’s emphasis on the behaviour of anti-land invasion units, outlawing the confiscation of possessions, and restating the obligation to treat people with dignity will significantly protect the landless.”

Our movement has lost two comrades, Samuel Hloele and Nkosinathi Mngomezulu, to armed attacks by the Anti-Land Invasion Unit in Durban and we welcome the SCA judgement as a huge victory for the poor and marginalised.

The judgment fundamentally changes the power relations between impoverished people and municipalities and private land owners. It shows, again, that there are important progressive commitments and possibilities with the Constitution and the laws derived from the Constitution that the organised poor should, working with progressive lawyers, use along with other strategies to resist the landlessness, precarity and violence suffered by impoverished people.

Our access to land and housing is always ultimately won by organisation and struggle. However, tactical use of the courts is an important component of our struggle, and has always been part of the struggles of the urban poor going back to the days of the Industrial and Commercial Workers’ Union. We thank SERI for their commitment to our struggle and our movement and to the struggles and organisations of the oppressed in general.

Thapelo Mohapi 084 576 5117

Mqapheli Bonono 073 067 3274

Zandile Nsibande 073 611 8279