Major win for property rights and fight against land invasion in South Africa

Both the High Court and Supreme Courts of South Africa have rejected a bid to strike down the legal right of landowners to protect their property from unlawful occupation.

According to the City of Cape Town, the Economic Freedom Fighters (EFF) and the South African Human Rights Commission (SAHRC) have been trying to prevent the city from taking action against illegal occupiers of municipal land—without a court order—by evoking the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act.

However, the country’s courts have so far rejected these attempts by upholding the right of counter-spoliation—the act of retaking property in the process of being taken away—as lawful and not unconstitutional.

“While the courts have rejected the applicants’ widest and most dangerous attacks on property protection rights, the city remains concerned about the court’s interpretation of the narrow timeframe for landowners to counter-spoliate, and the city’s appeal in this regard was dismissed,” it said.

However, the city noted that the SCA ruling does open the door for this to be resolved through future changes to the PIE Act.

“As with the High Court, the SCA has not agreed with arguments by the EFF and the SAHRC that legal protection under the PIE Act begins the moment a person merely enters a property with the intention to seize it.

“Instead, the SCA found that city personnel may make an on-site assessment of whether counter-spoliation is an option to stop an invasion of property in real-time before resorting to obtaining a court order,” the city said.

The continued protection of public land by the city, including its Anti-Land Invasion Unit and private contractors, by the use of counter-spoliation, has been acknowledged by the SCA as lawful.

The EFF and SAHRC wanted the counter-spoilation rights declared unlawful, which the city said would have removed the existing ability of owners to lawfully retake possession of their own seized property, without approaching a court first.

The city argued that this right of counter-spoliation is both constitutional and vital for the protection of public land from mostly well-organised unlawful occupation attempts.

The case originated during the height of lockdown, at a time when the city conducted 993 anti-land invasion operations in 2020/21 in response to large-scale orchestrated illegal occupation attempts, which led to the formation of some 159 settlements, mostly on uninhabitable, unserviceable land.

Over the last five years, the city has responded to protect around 3,000 parcels of land, it said.

“It is not feasible to follow lengthy court processes before responding to coordinated invasions, which are often backed by criminal syndicates seeking to profit from illegal plot-selling and electricity connections.

“In these instances, fully built structures can even be dropped onto sites and furniture thrown in to create the impression of a long-established ‘dwelling’.”

Complex issue

In a lengthy judgment exploring complex issues, the SCA interpreted counter-spoliation to be applicable in the following circumstances:

‘At the level of general principle – a municipality, might be able to successfully counter-spoliate when homeless people invade its unoccupied land in certain circumstances.

It will be justified to do so, without resorting to the mandament van spolie or an interdict or under PIE, because counter-spoliation is not unconstitutional.

It remains part of our law until determined otherwise. However, it must do so instanter within a narrow window period, during which counter-spoliation is legally permissible.

The window closes and the recovery is no longer instanter when the despoiler’s possession of the land is perfected.’

The city said it would be assessing the ruling and consider whether any aspects of it should be taken on appeal.

• Read the full judgement here.

Cape Town mayor Geordin Hill-Lewis said that it is important for the state and any landowner to be able to protect property from organised invasion in real-time.

“In the end, the City must protect municipal land which is planned for valuable purposes to serve future generations of Capetonians.

“We want Cape Town to be a better place for all, even when it is double the size, and we will never stop advocating for enabling the state to protect land while also upholding the dignity of the vulnerable,” he said.

Notably, the city said that the SCA further explores the potential reforming of the PIE Act to exclude unlawful occupiers from its protection.

The court stated that:

“Academics, including Professors Van der Walt, Muller and Marais and Boggenpoel have written extensively on this subject. Amongst the proposals made is that the definition of s 1 of PIE be read down to include invaders under the term ‘unlawful occupier(s)’.

But that will have huge ramifications for other areas of the law, including property law in general, and cannot be done without input from other branches or agencies of the law, such as the Law Review Commission.

It might also require an attack on the constitutionality of PIE, which was not pursued in this case.

Ultimately the legislature may intervene of its own accord to, inter alia, change and adapt PIE accordingly. Since these aspects were not addressed before the high court, it would not be appropriate to determine them in this appeal.

In the meantime, courts should deal with these matters on a case-by-case basis until those issues are properly raised and dealt with fully, fairly and pertinently”.

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