City of Cape Town v The South African Human Rights Commission and Others

Between April and July 2020, the City of Cape Town's Anti-Land Invasion Unit (ALIU) demolished informal structures and dwellings (shacks) erected by homeless people on several pieces of the City's unoccupied land, without obtaining a court order. The structures were made of corrugated iron sheets, plastic, cardboard boxes, and wooden pallets. Some structures were partially built while others were complete. The demolitions resulted in injuries to some occupiers, destruction of their belongings, and undignified treatment, including the case of Mr Qolani (third respondent) who was dragged naked from his structure. In one instance (Erf 5144 Kommetjie Township, Ocean View), the City demolished structures on land it did not own, only obtaining the owner's consent after the fact. The South African Human Rights Commission brought urgent proceedings on behalf of the homeless people on 8 July 2020, seeking interlocutory relief and declaratory orders regarding the lawfulness and constitutionality of the City's conduct. The City sought to justify its conduct by relying on the common law remedy of counter-spoliation.

• Whether the City of Cape Town satisfied the requirements for counter-spoliation when removing homeless people from its unoccupied land
• Whether the City acted 'instanter' (immediately/forthwith) as required for counter-spoliation
• Whether homeless occupiers had acquired peaceful and undisturbed possession of the land before the City acted
• The proper interpretation and application of counter-spoliation in the constitutional era, particularly in relation to sections 10, 14(c) and 26(3) of the Constitution
• Whether counter-spoliation requires judicial oversight or supervision
• Whether the City's 'demolitions by sight policy' and exercise of discretion by junior officials was lawful
• Whether the City's conduct violated the occupiers' constitutional rights to dignity, privacy and housing

The appeal was dismissed with costs, including costs of two counsel where employed. The high court's declarations that the City's conduct was unlawful and unconstitutional were upheld. The amicus curiae's application for costs on an attorney-and-client scale against the City was refused, as the threshold for exceptional circumstances justifying costs against an unsuccessful party who opposed joinder was not met.

Counter-spoliation is only permissible when exercised 'instanter' (immediately) - meaning as part of the res gestae while the act of spoliation is still ongoing. Once a spoliator has brought building materials onto land and commenced construction of structures, they have manifested peaceful and undisturbed possession, the possessory element is complete, and the window for counter-spoliation closes. From that point, any dispossession without a court order is itself an act of spoliation and violates constitutional rights under sections 10 (dignity), 14(c) (privacy and protection of possessions), and 26(3) (right not to have homes demolished without court order). Municipalities that fail to act instanter must pursue available legal remedies through the courts, including mandament van spolie, interdict, or procedures under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The exercise of counter-spoliation cannot be left to the subjective, arbitrary discretion of junior officials but must be based on objective criteria and must respect the constitutional rights of even unlawful occupiers.

The Court noted that academics have proposed various reforms, including reading down the definition of 'unlawful occupier' in PIE to include land invaders, but stated such fundamental changes would require input from the Law Reform Commission and possibly legislative intervention. The Court declined to resolve broader constitutional questions about counter-spoliation that were not properly raised, indicating these should be dealt with on a case-by-case basis until comprehensively addressed in appropriate proceedings. The Court emphasized that municipalities must invest in training ALIU personnel with sensitivity to recognize and respect the constitutional rights of vulnerable persons during any lawful removal operations. The Court also referenced academic criticism of earlier case law (Residents of Setjwetla) for not addressing counter-spoliation pertinently, though noted the underlying principles remained valid. Mocumie JA noted that the court was not addressing the broader question of whether counter-spoliation should continue to be permitted in a constitutional democracy, as this fundamental issue was not properly raised in the proceedings.

This judgment provides important clarification on the scope and limits of counter-spoliation in post-constitutional South Africa, particularly in the context of land invasions by homeless and vulnerable people. It confirms that while counter-spoliation remains a valid common law remedy, it must be interpreted and applied consistently with constitutional rights, particularly the rights to dignity, privacy, and housing. The judgment significantly narrows the circumstances in which municipalities can demolish informal structures without court orders, requiring them to act truly 'instanter' - meaning before occupiers have brought building materials onto land and commenced construction. Once structures are erected and possession is manifested, municipalities must pursue formal legal remedies under PIE or other legislation. The case emphasizes that constitutional rights protect all persons, including unlawful occupiers and land invaders, and that municipalities cannot rely on subjective determinations by junior officials without objective guidelines and sensitivity to socio-economic circumstances. The judgment also highlights the tension between property rights and socio-economic rights, and signals that the constitutionality of counter-spoliation and the definition of 'unlawful occupier' under PIE may require further judicial or legislative consideration in future cases.