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A landmark high court judgment on land occupations discriminates against wealthy business people and allows the police to pick and choose who they will protect, claim the major affected landowners.
Meanwhile, the City of Cape Town claims that it “has no constitutional duty to protect private property” against massive land occupations.
Instead, land occupation should be considered a normal “commercial risk”, the metro argues in new court papers.
Western Cape High Court Judge Chantal Fortuin on August 31 ordered the City of Cape Town to either buy or expropriate the enormous “Marikana” settlement in Phillipi.
The vacant land adjacent to Cape Town International Airport was occupied in 2014 and now hosts a sprawling informal settlement housing anything between 22 000 and 60 000 people.
The roughly 28 hectares of land is mostly owned by two property groups with a pensioner, Iris Fischer, owning a small portion as well.
The major landowner is a property consortium led by 93-year-old businessman Manfred Stock.
Stock wants to skip past the Supreme Court of Appeal and go straight to the Constitutional Court, citing the enormous public interest and potential effects on other land occupation cases.
In an affidavit last month, Stock calls Marikana “the largest land occupation in South African history”.
He estimated that the current rate of expansion would see Marikana swell to 80 000 residents by the time the case actually gets heard on appeal.
Stock and his partners want the court to rule that the state did not do enough to protect their property.
Then they want a court order forcing Cape Town to pay them far more for the land than Fortuin’s judgment would allow for.
In particular, they want the court to force the city to ignore the land occupation when valuing the land and offer a price that would have been market related if the land was still empty and usable.
Not doing that “renders the order nugatory and indeed irrational because the properties, while occupied, are worthless to any purchaser”, said Stock.
“The properties cannot be used for any purpose whatsoever, so no one would pay anything for them.”
The problem for the landowners is that the court order only says that the city must “negotiate in good faith” to buy the land.
If that fails, it can expropriate – which would trigger a market-related compensation.
Due to the occupation, the market value of the land is zero, said Stock.
The entitlement to getting paid at all stems from judge Fortuin having found that the landowners’ constitutional right to property was infringed because the state did not stop the occupation.
“The court’s order, in effect, finds that the applicants have had their rights violated, but that the remedy is that we must enter into negotiations that must either fail or result in us getting nothing. This cannot be fair or constitutional,” said Stock.
The small part of the occupied land owned by the pensioner, Fischer, got a better deal from the judge.
The city will have to pay an amount based on the land’s value before the occupation.
The distinction is due to the developers having taken “commercial risk” where Fischer’s land is actually her home.
Stock says this is unlawful and “imperils the very notion of equality before the law”.
“Only the state has the resources needed to stop this kind of mass land occupation.
"The high court erred insofar as it treated us as somehow wealthier and therefore less deserving,” said Stock.
CITY WASHES ITS HANDS
The City of Cape Town itself filed papers a week and a half ago to appeal the judgment in exactly the opposite direction.
The city is panicking that Judge Fortuin has saddled it and the rest of the state with an obligation to buy all sorts of land simply because the private owners didn’t do enough to repel occupiers, argues the city.
The city also claims it did everything it could possibly be expected to do to stop the occupation.
The municipal Anti-Land Invasion Unit spent “80% of its human and financial resources” trying to stop Marikana from being erected, it claims in its application for leave to appeal earlier this month.
The city also denies that it failed the occupiers.
There is a legal obligation to find emergency housing for people who face imminent homelessness.
This comes into play whenever indigent people are facing eviction.
Cape Town says that it put everyone in Marikana on the waiting list for emergency housing and that this is all it can be legally expected to do for them.
This list has a 60-year waiting period by now, according to a recent presentation by Stuart Wilson, director of the Socio-Economic Rights Institute, which represented the Marikana residents in the case.
The developers bought most of the land when there were already some occupiers on it, the city said.
In Stock’s version the landowners were helped by SAPS and the Anti-Land Invasion Unit to “defeat” three previous organised attempts to occupy the land starting in April 2013.
In August 2014, the land was occupied by thousands of people in the course of mere days because the SA Police Service “turned its back”.
At the time, according to Stock, the sheriff quoted the landowners a figure of R10 million to evict the occupiers.
It would have been a brutal and pointless exercise, Stock admits.
“It has always been the applicants’ view that eviction was impossible. Not only is there nowhere for the occupiers to go, but the human cost and misery that would be caused ... is simply too high.”
