City of Cape Town to appeal against ruling on shack demolitions

THE City of Cape Town said on Monday it would appeal the recent Western Cape High Court finding that shack demolitions in the Marikana informal settlement were unlawful and unconstitutional.

The city said that, if left unchallenged, the judgment could incentivise land invasions and in so doing undermine the rule of law and sustainable housing provision.

Last week, the city was interdicted from demolishing further structures in the informal settlement without a court order. The court ordered the city to construct shacks to the equivalent of those demolished by the anti-land invasion unit in January.

The Legal Resources Centre, on behalf of the residents, had argued in court that the unit acted "unlawfully and unconstitutionally" when it destroyed shacks on a plot of private land off Lansdowne Road, in Philippi East. The informal settlement is known as Marikana in honour those who died at Lonmin’s Marikana mine in 2012. City authorities argued that they had not acted unlawfully. The city said the structures demolished were not homes, were unoccupied, and were erected during a land invasion on January 7.

In its judgment, the court said: "The city’s operation seems to have been somewhat haphazard in that the evidence suggests both confusion and a degree of arbitrariness in the selection of targeted structures". The court found the city demolished the homes even though it accepted that all the structures were complete and therefore occupied. The court ruled that no municipality has the right to decide what counts as a home. Only the courts can do that.

City of Cape Town mayoral committee member for human settlements Tandeka Gqada said on Monday that the city intends applying for leave to appeal against the judgment to the Supreme Court of Appeal as a matter of urgency.

"The city is of the view that the judgment, especially as it pertains to the definition of what constitutes an occupied or unoccupied structure, has serious implications for the systematic, fair and just housing delivery system," Ms Gqada said.

"By ruling that the mere existence of an intention to occupy a structure as a home without any factual requirement that the person actually lives in the structure, the Court has in the city’s view allowed for the serious erosion of a number of protected rights – both of the state and private land owners," she said.

Last week, informal settlements lobby group Abahlali Basemjondolo said this was a "landmark" ruling that would help shack dwellers all over South Africa to stop municipalities’ "relentless demolitions of poor people’s homes". These demolitions were unconstitutional, illegal and often violent, he said.

"This ruling will not only help the residents of Marikana, in Cape Town, but will also help the Marikana land occupation in Durban and help to protect thousands of shack dwellers throughout the country who have been forced to endure the violence and oppression of anti-land invasion units which rob us of our right to dignity," said the lobby group.

- BDLive