The City of Cape Town has been caught red-handed using a
fraudulent legal pretext to justify the eviction of shack dwellers who had
occupied a vacant piece of City-owned land, by citing a non-existent law they
claim is called the “Protection of the Possession of Property Act”. After
speaking with legal experts in the field of property and evictions, I was told
that not only was the eviction of the 'Marikana' shack dwellers in Cape Town’s
Philippi East illegal according to the PIE Act, but city officials had also
lied about the living conditions of the shack dwellers.
Most worryingly, the City has gone as far as fabricating an
act of Parliament to present common law tradition as an authentic counterpoint
to the PIE Act in order to justify the eviction.
The recent eviction of hundreds of shack dwellers who
labelled themselves the Marikana Land Occupation in honor of their “brothers
who died there - [because] we, too, are organising ourselves peacefully, and
are willing to die for our struggle” – has reached mainstream media outlets
with heart-wrenching images of a mother with her one-month-old infant being
evicted from their home.
Since their 'UnFreedom Day' occupation, I've been following
the events closely, visiting almost every day and, in my own peripheral role as
an activist and supporter of the community, helping their movement access legal
representation and organising drop-offs of food and clothing for the most
vulnerable affected families.
After having seen many similar evictions for years and
speaking to a range of legal minds on the subject, it has become clear that
municipal governments all over the country take advantage of the inability of
poor communities to represent themselves effectively in the media and access
legal representation. They use this vulnerability to flout various
constitutional safeguards when evicting shack dwellers and homeless South
Africans. Municipalities then frequently go on to publicly assert the legality
of their eviction by misrepresenting laws and lying about the facts on the
ground.
On Friday 3 May, the City of Cape Town's Media Manager,
Kylie Hatton, issued the statement on the 'Marikana' evictions. The full statement
is as follows:
On Wednesday 1 May 2013, the City’s Anti-Land Invasion Unit
demolished 125 structures in Philippi and on Thursday 2 May 2013, took down a
further 11 structures. On Friday, 3 May 2013, four structures were removed.
This was done in accordance with the Protection of the
Possession of Property Act, which does not necessitate a court order. However,
residents were verbally warned prior to the removal of the structures.
The City of Cape Town will continue to monitor and take
action in terms of counter spoliation (as per the above mentioned Act) to
protect its land from being illegally occupied.
It must please be noted that the City did not remove the
homes people were staying in. The Anti-Land Invasion Unit removed illegal
unoccupied structures and the materials that were being used to build them.
Yet, consulting with a number of renowned experts in the
field of property and evictions yielded a number of concerns and contradictions
with the statement.
Sheldon Magardie, an experienced laywer and Director of the
Cape Town office of Legal Resources Centre, was blunt when I asked him about
the Act which Kylie Hatton cites: “There is no such law called the Protection
of the Possession of Property Act.” Advocate Stuart Wilson, who is the Director
of the Socio-Economic Rights Institute and teaches Property Law as a Visiting
Senior Fellow at Wits, concurred that in South Africa, no such act exists.
Not only is this law fabricated by the City or whomever has
advised them, but there are actually two South African legal documents being
ignored by the City, which explain exactly what the government should do when
land has been occupied: the South African Constitution and the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) of 1998.
The Section 26(3) of the Constitution states that “No one may be evicted from
their home, or have their home demolished, without an order of court made after
considering all the relevant circumstances. No legislation may permit arbitrary
evictions.” The PIE Act legislates the procedure for a legal eviction of the
court.
Stuart Wilson goes on to explain that what the City is
attempting to do in its argument is assert “counter-spoliation...a common law
tradition dating back to Roman times.” Common law says that legal authority is
always required to force a possessor of property to part with that property
(regardless of whether that person has the right to that property). Counter
spoliation, an exception to this rule, “permits a person who is in the process
of having property taken from them to immediately take that property back
without a court order...[in other words] they never really had the property in
the first place - at best they were in the process of trying to snatch it away
from you. What the City seems to be saying - rather ham-fistedly - is that it
was entitled to take its land back immediately, without a court order, because
the ‘invaders’ were, at best, only in the process of depriving the City of
possession of the land.”
However, as Wilson, Magardie and others have explained,
counter-spoliation does not apply to the eviction of people from their homes –
whether or not those people are deemed 'squatters' or even 'illegal land
grabbers' as per the 2004 case Rudolf v City of Cape Town (see this link for a
great summary of the findings. In particular, read the first point under The
Decision on the Main Application).
Rather, during such circumstances, Wilson says that “it will
always be necessary to follow the procedure set out in the PIE Act”. The PIE
Act therefore applies in all cases of people occupying land or structures of
any kind, even if the City deems such homes to be 'partially built' or
'unfinished'.
Yet, the City is claiming that these shacks were not 'homes'
but 'empty structures' that were not occupied. This is a blatant lie. The
City's official guidelines for the Anti-Land Invasion Unit (ALI) defines a
'home' quite clearly: “A structure is not a 'home' until it has been inhabited
by a person or persons who reside in the structure with their belongings and
intend to continue doing so”. It then goes on to say that “where the act of
taking unlawful occupation has been completed, counter-spoliation will not be
permitted”.
With regards to all but a small minority, the shacks were
occupied with beds, furniture, clothes, food, and yes, with people living and
sleeping in them. If this were not the case, then why would the Law Enforcement
have removed people and their belongings by force from the homes? Nearly every
home required the physical removal of people and their property by Law
Enforcement before its destruction by the Anti-Land Invasion Unit. This form of
counter-spoliation explicitly requires a court order – otherwise it is illegal.
As an eyewitness having seen the shacks being occupied and
lived in for many days before the evictions (as early as 25 April), as well as
watching these evictions on 28 April and 1 May, I know this to be true. More
importantly, though, there are more than enough photographs and video footage
by a range of people (residents, journalists and even city officials) which
prove that families and their belongings were removed from their homes.
These homes were clearly occupied and therefore the
evictions were clearly illegal. The City needs to explain (1) why it is
conducting illegal evictions, (2) why it is lying about the evictions by
claiming the homes are unoccupied and (3) why it is fabricating laws to justify
these evictions.
Further, representatives need to explain why they
confiscated residents' property and are refusing to return this property to
residents. According to the ALI's own guidelines, material/property may not be
removed and if it is removed, it should be, when claimed, immediately returned
to the rightful owner.
Finally, and most worryingly, the City of Cape Town should
justify why it has allocated R8 million
from the housing budget towards founding ALI in 2008, and continues to
spend housing money on a unit not tasked to build, but to destroy peoples'
homes. This huge sum of money could be more effectively used towards making a
dent in the huge housing backlog.
In such an unequal and segregated city at this, it is
criminal that our government is reinforcing Apartheid legacies and the
continued dispossession of land from its inhabitants. Meanwhile, they are
spending millions to illegally evict poor and landless people, who are merely
attempting to provide a decent life for their families when they build on vacant
and unused public land.
