Western Cape Premier Alan Winde.

• The interim interdict granted by the Western Cape High Court this week will set a precedent as to how all landowners handle illegal land invasions going forward, Premier Alan Winde says.
• Where an attempt to occupy another’s land is made knowing that it is unlawful, the owner must be able to protect their property and act immediately by removing any structures before it is occupied, he argues.
• Judges Shehnaz Meer and Rosheni Allie ruled that the City of Cape Town must have a court order to evict anyone or demolish a home. 

Western Cape Premier Alan Winde said on Friday that in any attempt to occupy someone else’s land unlawfully, the owner must have the right to protect their property. Winde was reacting to an interim ruling by the Western Cape High Court on land invasions. This means that any illegal structures should be allowed to be removed before an invasion, according to the premier.

“The ability of the landowner to do this is, in our view more of a deterrent to these unlawful actions than any threat court interdict or trespassing charges present and is critical to upholding the rule of law in South Africa,” he said in a statement.

He was reacting to Western Cape High Court judges Shehnaz Meer and Rosheni Allie on Tuesday ruling that the City of Cape Town must have a court order to evict anyone or demolish a home.

His comments were included in a joint statement with Human Settlements MEC Tertuis Simmer.

“Our first responsibility as a government is to those law-abiding citizens on the housing list, many of whom have been waiting for years for a home and are both vulnerable and the most deserving. We have already had our ability to deliver housing slowed down by Covid-19, budgetary cuts and by illegal land invasions and this interdict has the potential to stall real service delivery even further.”

Winde continued that having a safe, dignified space to call home was important.

“We also understand that in the current economic climate, there are many people who may not be able to afford to pay their rental at this time,” he said.

“The Western Cape Government does not support unlawful evictions – people who have been rendered financially vulnerable in the current climate deserve to be treated with respect and dignity in this time of crisis.

“The Western Cape Housing Tribunal in the Western Cape exists to settle disputes between tenants and landlords, and handles complaints regarding unfair practices and illegal evictions.”

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Winde said the interim interdict, which bars the city from taking immediate counter steps to halt ongoing illegal land occupations by prohibiting the removal of all tents, shacks, or similar structures which have not been occupied, will also set a precedent as to how all landowners handle illegal land invasions going forward.

“Whilst this order purports to be contained to recent demolition actions taken by the City’s Anti-Land Invasion Unit during the course of various invasions of City land, the wide ambit of its effect means that land owners are now prevented from resisting  illegal land invasions by removing tents or any other form of temporary structure from their land, even before they are ever occupied without a court order,” they said.

“This is in contrast to our common law position which recognises a landowner’s right to take back possession of his or her property in circumstances where it is done actively and immediately.

“Whilst the extent of this right of counter-spoliation is the subject matter of a second hearing in this application, which is only due to be heard by the court in October, the effect of the court’s order in respect of part A, has been to remove both the City and any other landowners’ right to remove incomplete, unoccupied structures on their land whilst it is being invaded.”

Local and provincial government had seen a “massive increase” in illegal land invations in recent months on both public and private land, Winde and Simmers said.

“In this case, the court’s suggestion that an urgent interdict or eviction order is a suitable viable solution for landowners to rather use when facing these invasions is often neither practical nor viable both financially or logistically.

“Many urgent applications have taken months, if not years, to achieve any final result by which stage an occupation is complete. The removal of a landowner’s right to take immediate practical steps to stop the course of an invasion on his or her land before it starts, renders all landholding vulnerable and has the added implication for the state in that all such occupations then render municipalities obliged to find alternative accommodation for those occupiers before any eviction order is granted.”