Possession is Nine-tenths of the Law

The concept of a ‘home’ has received significant judicial attention, especially the tension between the Constitution, the common law and subsidiary legislation providing for the right to housing as set out in section 26(3) of the Constitution. Do you have to be ‘home’ to have the right to recourse when occupying the property of another?

Written By of Cowan-Harper-Madikizela Attorneys

This issue was unpacked in the case of South African Human Rights Commission and Others v City of Cape Town and Others 2021 (2) SA 565 (WCC). The highly publicised and controversial matter that eventually ended up in the Western Cape Division of the High Court before a full bench. The court stated that:

“On 1 July 2020, while the country was in the grip of a lockdown because of the Covid-19 pandemic, the third applicant, Mr Bulelani Qolani, naked and in full glare of the public and social media, was forcefully dragged out of his informal structure in a settlement in Khayelitsha, by officials of the City of Cape Town. They thereafter proceeded to demolish his structure with crowbars.”

It was common cause that all of the structures that were dismantled on that day were either partially built or complete, but none were occupied, and the actions taken by the City officials were not authorised by an Order of a competent court.

The South African Human Rights Commission (‘SAHRC’) contended that on a purposive interpretation, the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (“the PIE Act”) applies when persons have commenced or are in the process of taking occupation of land or have the intention of taking occupation.

The City’s central thesis was that counter-spoliation was a response to the threat of free reign to unlawfully occupy the property while the City’s hands were tied. The City Official averred that the structures demolished did not constitute a ‘home’ within the meaning of the PIE Act or section 26(3) of the Constitution and consequently, the PIE Act applies only to occupiers of a home when a home has been established on the land and is being occupied as such.

The court grappled with the question as to what the permissible circumstances are in which unlawful dispossession, spoliation, may lawfully be repelled through asserting the defence of counter-spoliation without judicial oversight.

The central issue for determination, therefore, was:

” … the meaning of, the requirements for, and application of the common law defence of counter-spoliation, whether such defence or its exercise in relation to the invasion of vacant land is constitutional, and whether the particular understanding and application of the defence relied upon is both lawful and constitutional.”

A mandament van spolie is a common law remedy used to restore possession that was unlawfully lost. It is intended as a robust and expeditious remedy with the main objective of preserving public order by preventing persons from taking the law into their own hands and is rooted in the rule of law. There are only three requirements that need to be proven for a Court to justify the granting of a mandament van spolie.

  • First, there was an unlawful dispossession of the property (or indeed any other form of possession of the property, such as physical access to it).
  • Second, before the unlawful dispossession, the possessor was in peaceful and undisturbed possession of the said property; and
  • Lastly, no other remedy exists. Here the Court is not concerned whether there was a right to possess.

Counter Spoliation is not a stand-alone remedy or defence and cannot exist independently of a mandament van spolie. The Court confirmed the principle that counter-spoliation must be instanter (i.e. immediately in response) to spoliation and must be used at the stage where it can be considered as being part of the act of spoliation meaning that it is a continuation of the existing breach, not a new breach. For example, if the first victim dispossessed proceeds to take the law into his own hands after the original breach is completed and possession is perfected it would amount to a second act of spoliation beyond the scope of the defence of counter-spoliation.

The Court held that the enquiry of whether the structure was ‘home’ to the occupier is irrelevant in the scope of spoliation and counter-spoliation. Therefore, the common law defence of counter-spoliation and its requirements should not be conflated with the statutory scope and application of the PIE Act. It also reiterated that counter-spoliation, properly interpreted and applied, is neither unconstitutional nor invalid.

This decision demonstrates the nuanced enquiry for parties to property disputes concerning possession as compared to the application of the PIE Act. These disputes are largely fact-sensitive enquiries and the legal principles at play must be applied with caution as circumstances may vary. Parties to such disputes should take specialist legal advice to ensure a comprehensive understanding of subsidiary legislation like the PIE Act is weighed against the application of common law possessory remedies or risk reliance on an unsubstantiated demand.

Henry Korsten

Henry Korsten
Head of Property, Conveyancing and Litigation

Anthony Andrews

Anthony Andrews
Candidate Legal Practitioner of Corporate Law and Commercial Litigation

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