South Africa: SCA declares that the City of Cape Town violated the law when a man was dragged from his house while naked.

The Supreme Court of Appeal has confirmed that the City of Cape Town was wrong in applying the remedy of “counter-spoliation” when it demolished the shacks of land occupiers in and around the city in 2020, according to GroundUp.

The City had argued that it could use the remedy at any stage before a fully constructed informal structure becomes occupied as a home, but the appeal court has said this is not permissible. The court said this amounted to the City taking the law into its own hands. Such evictions could only take place within a “narrow window” without having to go to court, the judges said.

The City took the matter on appeal following an equally damning ruling in July 2022 by three judges in the Western Cape High Court in an application brought by the South African Human Rights Commission (SAHRC), the EFF and others, with Abahlali base Mjondolo as an amicus curiae.

The application was sparked by the widely-publicised eviction of Bulelani Qolani, who was dragged naked from his shack during the evictions, which were carried out by the City’s Anti-Land Invasion Unit (ALIU).

In this week’s ruling, SCA Judge Connie Mocumie, writing for the unanimous court, said the removals, which took place between April and July 2020 without a court order, resulted in shacks being dismantled, belongings destroyed, people being injured, and others being treated in the most undignified and humiliating manner, such as Qolani.

She said as a general rule, a possessor (such as the City) who had been unlawfully dispossessed (through land occupation) could not take the law into their own hands to recover possession.

But, she said, if the recovery (of the land) was done immediately – or at once – then it was regarded as a mere continuation of the existing breach of the peace and was consequently condoned by law. This is known as counter-spoliation.