Court gives City of Cape Town 48 hours to rebuild house it demolished

The City of Cape Town has been ordered by the Western Cape High Court to rebuild a man’s Wendy house home it had demolished – within 48 hours.

Judge Gayaat Salie-Hlophe on Wednesday ordered the City to immediately rebuild the man’s demolished house to the same size and dimensions, saying in court the City’s conduct was “deplorable, grotesque and without care for human dignity”.

But in response, the City advised it was “considering its options regarding the judgment”, as the order to re-construct the single illegal Wendy house has jeopardised the construction of a “valuable community facility”, including a five-a-side soccer pitch for use by the local community and youth.

After the court made its ruling, Ginola Phillips told News24 outside court, “I am very happy today, we received justice.

“I feel like for once the system didn’t fail us. The news was carried to the right ears by my community. I’d like to thank my community for always being behind me and always supporting me in this matter. We are very happy today.” Advocate Vernon Seymour, representing the applicants, told News24: “The court judgment was a victory for human rights.

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‘Clear message’

“What the court did today was send a very clear message: you cannot trample on people’s rights – and think you can get away with it. We hope the City of Cape Town will look at the judgment, will read it and will re-think the way they treat poor people in poor communities.”

The application was made by a group named as the Community of Hangberg, as the first applicant, and Phillips, as the second applicant.

The first respondent was the City of Cape Town, and the second respondent, mayor Dan Plato.The application pertained to the City of Cape Town’s dismantling Phillips’ home in Hangberg in Hout Bay, twice in June.

Phillips illegally began assembling his Wendy house on land owned by the City of Cape Town in early June. He alleged the City had broken down his Wendy house “without any legal process”.

The City responded that the construction of the Wendy house, on its land, had been without consent, and illegal, and Phillips had been officially warned to remove the structure – but had ignored this warning. The City had then removed the structure on 11 June, with the South African Police Service. But Phillips had then re-built the Wendy house.

Again, the City dismantled it – on 19 June. The City had also explained it had offered Phillips alternate “emergency housing” – but that Phillips had declined this invitation.

‘Sore and painful reflection’

On Wednesday, Salie-Hlophe ordered that the actions of dismantling the Wendy house were unlawful and unconstitutional, and that it amounted to an eviction and therefore violation of alert Level 3 lockdown regulations.

The City also has to file a report once the rebuilding has been completed by Friday, 17 July. The City and mayor were ordered to pay the costs of the application.

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In her eight-page ruling, Salie-Hlophe explained the rationale for her orders: “The actions of the respondents in repeatedly demolishing the home of Mr Phillips is a sore and painful reflection of a failure to appreciate the plight of our poor communities, the hardships suffered and what can probably be described as objectifying the indigent as having no individual rights worthy of recognition.

“Mr Phillips’ construction of his home, together with being in peaceful and undisturbed possession thereof, established his constitutional rights which have been zealously grabbed from him without care of his dignity and other enshrined values of our Constitution, his rights in terms of our law and with his humanity simply having been commoditised. This demolition was also inhumane, heartless and done with scant regard to his safety, security and health, particularly in light of the Covid-19 health pandemic.”

Salie-Hlophe said, as context, she understood the current “challenges” faced by governments and citizens the world over.

“It bears mentioning that the challenges to government, municipalities, businesses and individuals alike in the face of the country and global pandemic of this consuming virus are overwhelming.

“The City as a municipality is strained and under pressure to service, in accordance with its constitutional obligations, among others, to provide housing. However, they need to go about their affairs and utilise the manpower and infrastructure in a constitutional and lawful manner to achieve their goals. Trampling the Bill of Rights in its efforts is not permitted.”

‘Disappointment’

The judge concluded her argument by saying that “in the absence of an eviction order and with that an order expressly stating that it is just and equitable to do so, demolitions of homes cannot be carried out lawfully at present, during alert levels 3 and 4”.

In response to the judgment, the Plato said: “It is with disappointment that I note the judgment handed down today by Judge Gayaat Salie-Hlophe, in which an illegally erected structure on City-owned land was ordered to be rebuilt.

“The rebuilding of this illegally erected structure halts the planned development of the site for a recreational facility that would have included a five-a-side soccer pitch for use by the local community and youth in the area.

“Despite the City offering two alternative sites for the structure to be built, and making it clear that notice had been given at the time not to erect the illegal structure, the judge still ruled in favour of the occupant of the illegally erected structure. This ruling was made despite the judge challenging the applicants yesterday on why they did not accept the alternatives offered.

“While the structure was unoccupied and only partially built when it was removed, we note the judge’s order.”

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