The future of the Isiqalo informal settlement remains uncertain after the court dismissed the land owner’s attempt to force the City to buy the property and postponed its application to evict the illegal occupants.
While the City is happy with the court’s decision the residents’ association in Colorado Park, which is on Isiqalo’s periphery, are not.
“The outcome of the court case is great disappointment,” said Natalie Bent, the chair of the Colorado Park Ratepayers and Resident’s Association.
“The court judgement failed the Mitchell’s Plain people who are held hostage when the Siqalo shack dwellers throw tantrums when they can not get their demands met.”
Bent said residents are “fearful” with the informal settlement so close to a main road.
“Residents are fearful when they have to stop at the traffic lights because of highjackings and smash-and-grabs. A young man lost his life when a taxi dragged him along Jakes Gerwel,” Bent said, referring to an incident when a protest along the arterial road became heated and a taxi tried to force its way through the chaos, killing the protester. “How long must our hard working people suffer because of the justice system.”
The Western Cape High Court dismissed key parts of a long-running legal battle between 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, on Tuesday 19 August.
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.
Competing constitutional rights
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.
Eviction order
Mayco member for human settlements Carl Pophaim called the application “opportunism” and said the City welcomed the ruling.
“Ross Construction is further seeking an eviction order for the unlawful occupants, as an alternative to the dismissed relief. The court postponed the eviction aspect as the personal circumstances of the current unlawful occupants is not before the court, and the land owner has taken no steps to provide this.”
TygerBurger called Ross for comment and was referred to the company’s lawyers, STBB. STBB said that the main counsel for Ross Demolition was on leave. The attorney was still not available for comment by the time TygerBurger went to print.
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.
