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Community of Hangberg and Another v City of Cape Town (7837/2020) [2020] ZAWCHC 66

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Community of Hangberg and Another v City of Cape Town (7837/2020) [2020] ZAWCHC 66

24th July 2020

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1] This application came before me on the urgent roll yesterday, 14th July 2020.  Given the urgency of this matter, this judgment is of necessity brief.

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2] The City of Cape Town (“the city”) is the owner of erf 2844 Hout Bay (“the property”).  On two occasions the City demolished a structure unlawfully erected at the property by the second applicant, Mr. Ginola Phillips.  The structure, referred to as a “wendy house” on an open piece of land, situate in the midst of other wendy houses/structures in that area and which are occupied by local residents of the Hangberg Hout Bay area.   The initial construction started in the first week of June, which took a few days to complete and during this time it was occupied by the applicant and his brother, or a housesitter to guard his property from theft.[1] 

3] On Thursday 11th June 2020 he was alerted that officials of the City was breaking down the structure, he attended to the premises immediately however was not able to persuade the officers to cease the demolition.  Unable to return to his mother’s home due to reasons such as over-crowding exacerbated by the coronavirus pandemic he rebuilt the structure with the physical and financial/material support of members of the community.  He managed to rebuild the dwelling within two days and took occupation thereof by 13th June 2020. He was in peaceful and undisturbed possession of the property when on Friday, 19th June 2020 officials from the City Council arrived at this place and in his presence, took photos thereof.  Approximately a half an hour later, the officials returned and proceeded to demolish the structure. 

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4] It is the case of the applicant that he had been evicted from the property which he refers to as “my place” without any legal process having been resorted to and/or obtained and seeks restoration on the basis that he was spoliated of possession of his home and accordingly unlawfully evicted. 

5] The City opposed the relief sought on the basis that the second applicant had no consent from the City to erect a structure on the property nor did he have any other right in law to do so.  In an affidavit filed on behalf of the respondents, Ms. Riana Pretorius,[2] concedes that Mr. Phillips was quite clearly an unlawful occupier at the property as defined in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, no. 19 of 1998 (“the PIE act”).  The construction, however, was the subject of complaints on the basis that the erection was unlawful and the illegal mining of sand was causing subsidence of soil affecting property located higher up on the slope.  The Anti-Land Invasion Unit served the second applicant a notice on 9 June 2020 to remove the structure and when he failed to do so the members of the said unit conducted a joint operation at the property together with members of the South African Police Services and the City’s law enforcement officials when the structure was dismantled and removed.  Notwithstanding the aforesaid notice, the second applicant re-erected the structure at the same place on the property which the City proceeded to demolish again on 19 June 2020.

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