Landmark ruling: Supreme Court of appeal establishes guidelines for municipalities and landowners in land invasion cases

1. In a momentous ruling, City of Cape Town v The South African Human Rights Commission and Others(1337/2022; 368/2023) ZASCA 110 (10 July 2024), the Supreme Court of Appeal dismissed an appeal lodged by the City of Cape Town against a judgment handed down by the Cape Town High Court on 15 July 2022.
2. The case centred on whether a municipality may counter-spoliate when homeless persons occupy the City’s vacant land, and if so, under what circumstances it can justifiably do so without resorting to the remedies available under South African law.

The Facts:

What is spoliation and counter-spoliation?

3. Spoliation occurs when a person is unlawfully dispossessed of property. In such instances, the prejudiced person has the mandament van spolieremedy at their disposal. To be successful, an applicant need only prove to the court that they enjoyed peaceful and undisturbed possession of the property or other real right. The fact that the possession was wrongful, or illegal is irrelevant.
4. As a general rule, a possessor who has been unlawfully dispossessed cannot take the law into their own hands to recover possession. However, if the recovery is forthwith (instanter) in the sense of still being part of the act of spoliation, then it is regarded as a continuation of the existing breach of the peace and is consequently condoned by the law. This is known as counter-spoliation (contra spolie).
5. It is thus an established principle that counter-spoliation is not a stand-alone remedy or offence and does not exist independently of a spoliation [para 10 of the SCA Judgment]. Counter-spoliation, therefore, entitles a party to follow and retrieve possession of that which it has been despoiled of, provided that the counter-spoliation was instanter [para 3 of the SCA Judgment]. The very label of counter-spoliation is indicative that its objective is to resist spoliation and that it may only be resorted to during the act of spoliation [para 6 of the SCA Judgment].
6. From April to July 2020, the City of Cape Town removed a number of homeless persons who were occupying parts of the City’s vacant land, without a court order. The City’s Anti-Land Invasion Unit (ALIU) proceeded to demolish these persons’ homes, structures, or dwellings, colloquially known as “shacks”. In response, the South African Human Rights Commission sought urgent interlocutory relief from the High Court on behalf of the displaced individuals.
7. The City attempted to justify its actions by invoking the common law remedy of counter-spoliation.
8. The High Court ruled that the City had misapplied the concept of counter-spoliation. The City had not acted instanter under the circumstances, rendering its counter-spoliation unjustified.

The SCA Decision:

When is counter-spoliation permitted?

9. The Supreme Court of Appeal upheld the High Court’s ruling, stating that although a municipality could in principle counter-spoliate when homeless persons occupy its vacant land, this would only be permitted under certain circumstances. The counter-spoliator must act instanter within a narrowly defined window period. Once the act of spoliation is completed and the spoliator has perfected possession, the window within which to invoke counter-spoliation is closed [paras 3 and 6 of the SCA judgment].
10. Counter-spoliation is thus only permissible where: (a) peaceful and undisturbed possession of the property has not yet been acquired, i.e., when the taking of possession is not yet complete; and (b) where the counter-spoliation would not establish a new breach of the peace. Once a spoliator has acquired possession of the property and the breach of the peace no longer exists, counter-spoliation is no longer permissible.
11. The person who seeks to counter-spoliate, in this case, the City, must show two requirements: (a) the (homeless) person was not in effective physical control of the property (the possessory element); and (b) thus, did not have the intention to derive some benefit from the possession (the animus element) [para 11 of the SCA Judgment].
12. This means that if a homeless person enters the unoccupied land of a municipality with the intention to occupy it, the municipality may only counter-spoliate before the person has put up any poles, lines, corrugated iron sheets, or any similar structure with or without furniture (all of which would point to effective physical control of the property occupied). If the municipality does not act immediately (instanter), before the stage of control with the required intention is achieved, then it cannot rely on counter-spoliation. It will then have to seek court relief, for example by way of the mandament van spolie, an ordinary interdict, or pursue a remedy under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) [para 12 of the SCA Judgment].
13. “[L]and invasion is itself an act of spoliation. The Constitutional Court has recently reaffirmed that the remedy of the mandament van spoliesupports the rule of law by preventing self-help. A person whose property is being despoiled is entitled in certain circumstances to resort to counter-spoliation” [para 14 of the SCA Judgment].
14. The ruling of the Supreme Court of Appeal underscores the importance of the rule of law and the necessity for judicial oversight in land invasion cases. It sends a resounding message that municipalities and landowners cannot take the law into their own hands and must respect the rights of all persons, including the homeless.
15. Authored by Mr. Marinus Barnard and Mr. Petrus Coetzee – BDP ATTORNEYS [George], situated at Church Corner, 2nd Floor, Church Corner Building, C/o Church & Courtenay Streets, George, 6530, Western Cape Province. For further details or inquiries, do not hesitate to reach out to Mr. Marinus Barnard at marinus@bdplaw.co.za or 078 064 4776.