The South African Human Rights Commission (SAHRC), housing activist group Housing Assembly and Bulelani Qolani are challenging the eviction and demolition of structures by the City of Cape Town without a court order.

The EFF and Abahlali baseMjondolo are joined as amicus in the matter.

Qolani was dragged naked in public from his Empolweni home on July 14 by members of the ALIU, in an incident which shocked and angered the public.

In his argument, Senior Counsel for the SAHRC, Advocate Norman Arendse said that demolitions of structures on unoccupied land may only be supervised by the courts. Arendse further argued that the purpose of the law was to protect the most vulnerable members of society and to ensure that principles of human rights including dignity and equality were respected and upheld.

Police Minister Bheki Cele met with Bulelani Qolani in Empolweni, Khayelitsha after he was dragged naked in public by the City’s Anti-Land Invasion Unit. Picture: Phando Jikelo/African News Agency

However, he argued that the ALIU acted contrary to these provisions and its establishment was unlawful, irrational and unconstitutional.

Arendse further argued that the City was not empowered to set up the ALIU and grant its  officers powers that were exclusively accorded to the police.

He further submitted that the unit was made up of private contractors who had no proper training in carrying out demolitions and evictions without a court order but rather used their own discretion in assessing whether a home was occupied or not and what needed to be demolished.

Arendse also questioned a tender document put out by the City for additional assistance to the ALIU, saying that it's scope was not clear but the officials were given an incentive to demolish as many structures as possible.

He argued that counter-spoliation was an unconstitutional remedy used to avoid court supervision and called for all evictions to be carried out under court supervision.

Legal counsel for the EFF, advocate Tshidiso Ramogale also submitted that the manner in which counter-spoliation was used was open to abuse.

"The problem arises when we look at who should be empowered to make a determination about the enforcement of law in cases of a violation. That power lies in the hands of the court and not in the hands of someone who is a judge in their own case," he argued.

The judges also heard arguments from Abahlali baseMjondolo, who were admitted as amicus in the matter.

Advocate Stuart Wilson argued that counter spoliation as it currently stood, did not authorise the City to demolish half-built or fully built structures.

Asked by the judge whether the use of pegs was sufficient for establishing possession, Wilson said that the mere demarcation of sites was sufficient  for establishing possession.

The court will continue with arguments from the legal counsel for the City and other respondents when it resumes in May.

Source: IOL