Municipal Accountability at a Crossroads: Judicial Intervention in Urban Decay

In a significant ruling on 26 April 2023, in Body Corporate Of The Six Sectional Title Scheme v City of Cape Town[1] (“The Six”), the Cape Town High Court addressed a pressing issue involving The Six Sectional Title Scheme (“the community scheme”) and the City of Cape Town (“the City”), putting a spotlight on the complexities of managing urban spaces, the rights of property owners, and the responsibilities of local government towards illegal occupation, public nuisance and threats to people's constitutional right to an environment that is not harmful to their health or well-being. Since late 2017, the community scheme, alongside several unit owners, has been in discussions with the City, seeking assistance with illegal occupations and activities on nearby erven (“the site” – earmarked for land redistribution following the forced evictions of the apartheid era) which pose health, safety, and environmental risks.[2]

These activities, conducted by various individuals including the homeless, have led to a gradual degradation of the site’s condition, negatively impacting the surrounding communities.[3] The community scheme sought a final interdict against the City, compelling it to clear the site of illegal occupants and structures (which included eviction proceedings), stop the various nuisances, ensure compliance with laws and by-laws, fence off the site, and conduct regular inspections to prevent further illegal occupation of the site.[4]

During the proceedings, it emerged that the City’s actions, or lack thereof, in addressing the unlawful occupation back in May 2021, under another case, were unclear, prompting the High Court to request additional information regarding the steps taken or planned to resolve the issue as was already canvassed in that previous court case, wherein the City’s officials had confirmed under oath that they knew that evictions needed to take place on the site.[5]

The City’s projected timeline for redistributing the land to rightful claimants by August 2024 was met with skepticism by the High Court, highlighting the protracted nature of resolving such disputes and the interim challenges posed to property owners.[6] The City’s approach to the eviction of unlawful occupiers in District Six (where the site is located), reveals a complex and protracted process fraught with legal, logistical, and policy challenges.[7] Initially, the City had disavowed that earlier affidavit by one of its officials as inadmissible hearsay evidence but then remained committed to its statements within a specified context – rather peculiar as noticed by the High Court.[8]

Efforts to clear District Six for the successful land claimants (which process to determine the successful applicants is also still ongoing) and development were impeded by the need to navigate various complexities, including reconciling national and local government perspectives, addressing the shortage of land to which persons and families could be relocated, securing vacated sites, and deciding on the strategy for evictions.[9] Despite ongoing discussions among stakeholders, including high-level meetings with ministers and the appointment of legal counsel, no definitive strategy or timeline for eviction and redevelopment has been established.[10] The City prioritised certain evictions and developed an “Integrated Human Settlements Framework” to address diverse housing needs but has not yet initiated formal eviction proceedings in District Six, raising concerns about the realisation of land restitution for certain claimants displaced by apartheid in the forced evictions of that period.[11]

The situation is described as a “catch-22” with the redistribution process stalled by the unresolved issue of unlawful occupation, suggesting a significant delay in resolving the matter.[12]

“The unlawful conduct will not end until the land is distributed, and the land cannot be distributed until the unlawful activities end. It is against this background that the applicant contends the City must be ordered to take more permanent steps.”

The High Court acknowledged the community scheme’s lack of standing to directly seek eviction of the unlawful occupiers, pointing to the delicate balance between enforcement of property rights and the City’s policy decisions regarding eviction and housing.[13] This aspect of the ruling emphasises the complex legal and ethical considerations in addressing homelessness and illegal occupation in our cities.[14]

Central to the dispute was the City’s alleged failure to mitigate the nuisance and illegal activities on the site, which was argued to be in violation of s 24 of the Constitution and local by-laws. Section 24 of the Constitution grants every individual the right to an environment that is not detrimental to their health or well-being and mandates the protection of the environment for current and future generations through reasonable legislative and other actions that prevent pollution and ecological degradation, encourage conservation, and ensure ecologically sustainable development and utilisation of natural resources, all the while supporting justified economic and social development. The activities reported on the site included drug dealing, unattended fires, public indecency, abundant trash in overgrown bush and weeds, and harassment, illustrating a dire picture of the site’s condition and its impact on the community.[15] The City’s defence, which suggested a dislocation from the consequences of its own inactions, was met with criticism from the High Court, particularly for bizarrely denying the unit owners’ rights under s 24 of the Constitution.[16]

The High Court ordered that the City must take concrete steps to stop the nuisance and comply with specific by-laws related to environmental health, community fire safety, and waste management.[17] This decision was aimed at curbing criminal activities on the site and ensuring its safe use and enjoyment.[18] The City was also mandated to report back on its actions, which underlining the High Court’s intention to ensure accountability and follow-through by the City and its officials.[19]

This case highlights the ongoing challenges faced by municipalities in South Africa in balancing the rights of property owners and community schemes with the broader societal issues such as homelessness and urban decay. It also underscores the necessity for proactive and coordinated action by local governments, and private community schemes, and active citizens to address public nuisances and illegal occupations, within the framework of the law and the bill of rights. Furthermore, the ruling serves as a precedent for similar disputes in other jurisdictions and districts. It reflects the increasing reliance on the High Courts and their role in prompting governmental action to uphold the Constitution and protect the interests of communities affected by such issues. Where else can communities and individuals turn?

This case not only sheds light on the specific plight of this specific community in Cape Town but also raises broader questions about local governance such as in our other cities across South Africa where there are similar examples of illegal occupations, and poor waste management from decades of delays in addressing these issues, exacerbating urban decay, posing questions about legal and political accountability, and the increasing need for protection of public and private interests (and lives) in our rapidly changing urban landscape.

Sectional Title Solutions

[1] (15732/2019) [2023] ZAWCHC 82; [2023] 3 All SA 136 (WCC), accessible at https://www.saflii.org/za/cases/ZAWCHC/2023/82.html.

[2] The Six para 4.

[3] The Six para 4.

[4] The Six para 6.

[5] The Six para 15.

[6] The Six para 19.

[7] The Six para 17.

[8] The Six para 16.

[9] The Six paras 17 to 22.

[10] The Six para 17.

[11] The Six para 17.

[12] The Six para 19.

[13] The Six para 20.

[14] The Six paras 20 and 21.

[15] The Six paras 23 and 24.

[16] The Six para 25.

[17] The Six para 69.

[18] The Six para 69.

[19] The Six para 69.