On Tuesday 19 August the Cape High Court dismissed key parts of a long-running legal battle involving Robert Ross, owner of Ross Demolitions, the City of Cape Town, provincial government and national government over the Isiqalo Informal Settlement, privately-owned land in the Philippi Horticultural Area, which has been illegally occupied since 2012.
Ross, who bought the property in 1992 and ran a sand-mining business there, in his court action argued that the City and national government had violated his constitutional right to property by failing to prevent or resolve the occupation. He sought orders compelling the authorities to buy the land at market value and compensate him for losses, or evict the residents.
Judges J Slingers and AJ Sipunzi ruled that the court had jurisdiction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and rejected the developer’s attempt to compel the City to buy the land or evict the illegal tenants.
The City opposed the application, arguing it had no legal duty to protect private property from unlawful invasions. It also maintained that over time the settlement, which now houses thousands of residents, had become part of the City’s broader housing- and informal-settlement planning.
The judges noted the case highlighted the tension between competing constitutional rights — the right to property and right to housing. They found that while the Isiqalo occupation was unlawful the municipality could not be held responsible for compensating the landowner or buying the land.
Parts 1-6 of Ross’ application, which sought orders directed at the City and one compelling the state to buy the land, were dismissed, and parts 7 and 8 concerning the evictions postponed indefinitely, leaving the future of the settlement unresolved.
The court also ordered Ross to pay all legal costs incurred by the City, provincial government and national government.
Established community
The Isiqalo settlement began in April 2012, when groups of people erected shacks on the land. Despite initial attempts by Ross’ private security, the police and the City’s Anti-Land Invasion Unit to stop the influx, the occupation grew rapidly. Over the years surveys revealed thousands of households, including children, elderly residents and people with disabilities living in an increasingly established community.
The occupied land, which abuts Jakes Gerwel Drive, has been an ongoing bone of contention among residents, the City and demolisher Ross, which has resulted in several demonstrations and violent altercations.
While the developer, Ross, has fought for more than a decade to reclaim or be compensated for the land the City has incorporated Isiqalo into its list of informal settlements and said it continues to provide basic services while rolling out its broader housing programmes.
