Demolition of constructions and elimination of land occupiers with no courtroom order is unconstitutional, says advocate.
First revealed by GroundUp.
The institution and operation of the Metropolis of Cape City’s Anti-Land Invasion Unit (ALIU) is illegal, as a result of it’s mandated to demolish constructions with no need a courtroom order, the South African Human Rights Fee (SAHRC) argued within the Western Cape excessive courtroom final week.
The case on the legality of evicting land occupiers was reheard in courtroom after the matter couldn’t be resolved by two judges in December 2020.
In its heads of argument, the SAHRC stated that the ALIU “is just not sure by the identical guidelines and requirements as SAPS or metro police” and that it’s “merely a sub-department throughout the Metropolis”.
But the ALIU workout routines policing powers and makes use of power to take away land occupiers and demolish their properties, stated Advocate Norman Arendse, representing the SAHRC.
The SAHRC additionally argued that counter-spoliation – when a dispossessed proprietor instantly and forcibly takes again possession of their property – has been utilized by the Metropolis to justify the demolition of constructions and elimination of land occupiers with out getting a courtroom order.
Arendse argued that counter-spoliation is unconstitutional “as a result of it permits the Metropolis to avoid the provisions of the … PIE [Act]”. PIE is the Prevention of Unlawful Eviction from and Illegal Occupation of Land Act, which prohibits illegal evictions and offers for procedures to be adopted to evict illegal occupiers. Arendse argued that any eviction “should be handled underneath courtroom supervision” and the PIE Act.
Reliance on counter-spoliation might “give rise to the potential of abuse”, stated Arendse.
The EFF, additionally an applicant within the case, stated “the Metropolis shouldn’t be left to be choose and executioner” relating to the elimination of constructions.
Advocate Tshidiso Ramogale, for the EFF, stated that in a dispute about property “it shouldn’t be the landowner who makes the choice” however reasonably the courtroom.
“Nobody ought to have the ability to usurp the features of the courtroom … and that is what counter-spoliation does,” stated Ramogale.
Background to the case
The candidates within the case, the SAHRC and the EFF, made their arguments earlier than three judges – Decide Vincent Saldanha, Decide Hayley Slingers, and Decide Mokgoatji Dolamo.
In August final yr, a Western Cape excessive courtroom judgment dominated that the Metropolis of Cape City’s Anti-Land Invasion Unit (ALIU) is not going to be allowed to evict anybody or demolish their properties with no courtroom order whereas the nation is in a nationwide state of catastrophe.
The SAHRC desires the ruling to increase past the nationwide state of catastrophe. However in December final yr, Judges Yasmin Meer and Decide Rosheni Allie couldn’t attain a consensus on the matter. It was determined that the matter ought to be heard once more earlier than a full bench of three judges.
The listening to started with arguments made by the candidates. The matter will proceed for one more three days at a date but to be confirmed. DM