In the 98-page judgment handed down last week, the judges said the City wrongly applied the remedy of "counter spoliation" when it demolished shacks and evicted families from several informal settlements during the lockdown.

The case stems from the City's eviction and demolition of Bongani Qolani's shack in June 2020. The South African Human Rights Commission took the matter to court after video footage showed a naked Qolani being dragged from his informal structure by law enforcement officials.

The EFF and shack dwellers' movement Abahlali baseMjondolo also joined the matter. The case was first argued before two judges, but they could not reach a consensus.

A new panel of three judges was then appointed to preside over the matter.

Commenting on the treatment of Qolani, the judges said the conduct of the officials involved in the incident was unlawful. They added that the City had misunderstood the implementation of counter-spoliation.

"Such conduct is indicative of not only the abuse of the remedy, but the very arbitrary conduct sanctioned by the City's incorrect and unlawful understanding and implementation of the defence of counter-spoliation," they said in their judgment.

In response to the ruling, the City said in a statement on Tuesday that it was considering whether to appeal aspects of the court's interpretation of counter-spoliation - those "affording landowners only the narrowest of windows to protect property".

It said:
The City is considering its options relating to the finding by the court that the City had not lawfully applied counter-spoliation in specific localised instances during the height of large-scale orchestrated land invasion attempts, particularly during the hard lockdown in 2020.

Mayoral committee member for safety and security JP Smith said the directorate, including the Anti-Land Invasion Unit, was currently being briefed on the enforcement implications of the court ruling.

"The ruling now brings to an end the interdict which had severely impacted the City's ability to protect the land from organised unlawful occupation attempts via the use of counter-spoliation, which remains a vital tool in protecting public land," he said.  

Source: News24