Mogale landowners push council to use its eviction by-law against land invasions

White and black landowners in Muldersdrift outside Krugersdorp are challenging the Mogale City local municipality after it allegedly failed to enforce a by-law to evict land invaders in the area.

Ward 39, covering areas such as Muldersdrift, Pinehaven and others, is most affected.

The landowners have been facing the problem of land invasion for some time and they want the municipality to remove the illegal occupiers who built shacks on land earmarked for a school in Utopia Road in Muldersdrift.

Landowners court victory

This month landowners won a victory when the Supreme of Appeal (SCA) upheld the right of landowners’ counter-spoliation – an act of retaking property after it has been taken away.

Ruling in favour of the City of Cape Town, the SCA stated that this was lawful and not unconstitutional.

The EFF and the South African Human Rights Commission (SAHRC) lost their bid to get the courts to strike down the existing legal right of landowners to protect property from unlawful occupation attempts without a court order.

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As in the high court, the SCA did not agree with arguments from the EFF and the SAHRC that legal protection under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act begins the moment a person enters a property to seize it.

Instead, the SCA found that city personnel may make an on site assessment of whether counter-spoliation is an option to stop an invasion of property before resorting to obtaining a court order.

The law on eviction of illegal occupiers applied even if the unlawful invaders had been on the property for more than 10 years.

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The eviction arises once the illegal occupiers refuse to implement an Authorised Informal Settlement until they are relocated.

The illegal occupiers of Utopia school land refused to constitute an Authorised Informal Settlement in terms of the by-law which directs that the municipality must evict them. But Muldersdrift landowners’ call for action by Mogale City fell on deaf ears.

The matter was taken up with the DA which was in control of the municipality, but it failed to act and the informal settlement remains on the land to date.

‘Msimanga did not even know’

At one stage, one landowner, Sandile Swana, approached DA Gauteng leader Solly Msimanga requesting that he intervene.

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But Msimanga did not even know that Mogale City had a by-law to control land invasion that was promulgated in 2013 and a municipal police force to enforce by-laws.

“Msimanga arbitrarily stated that there were no metro police in Mogale City, without evidence. He never advised the DA mayor and ward councillor to enforce the promulgated by-law. All of those actions are in conflict with this court decision now celebrated by the DA,” Swana said.

Msimanga did not respond to questions sent to his office. Mogale City was reportedly in the process of repealing the bylaw, Management and Control of Informal Settlements, so that the burden will be on landowners to evict illegal occupiers. But it has not yet been repealed.

When in June this year, Swana asked DA ward 39 councillor Gwen Britz about the repeal of the by-law, it was removed from the municipality’s website.

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Britz confirmed the amendment by-law was on the municipal website as of 15 June, but it had been removed later in the month.

No reason was given. Swana was severely assaulted by a resident when he visited the informal settlement as a landowner.

The woman who assaulted him was convicted in the Krugersdorp Magistrate’s Court.

The landowners continued to question why Mogale City did not implement its existing anti-land invasion by-law. Britz said: “I have written to the executive leadership of Mogale City and officials requesting assistance with concerns from residents regarding land invasions. Many cases are sub judice.”

Municipal spokesperson Adrian Amod said: “The occupants in this case have been living on the land before the current landowners purchased it.”

Amod said that eviction required a court order.