Correction of misinformation on draft Unlawful Occupation of Land by-law

The City of Cape Town draft Unlawful Occupation of Land by-law is currently out for public comment until 31 July 2021. It is vital that the public are empowered with the correct information about existing legal powers available to the authorities to protect land from illegal occupation, and safeguard the overall development goals of our city. Read more below:

The draft Unlawful Occupation of Land by-law is expected to streamline procedures underpinning the effective resolution of complaints, and to mitigate risks to the City, individuals, and landowners, by ensuring that necessary and ongoing enforcement actions to protect land are supported by legislation.

It is necessary to correct certain distortions in the public domain regarding this by-law as follows:

The by-law does not grant new powers to Law Enforcement, these already exist in national legislation

It is important to note that the powers to summons, issue admission of guilt fines, arrest, and search, are those conferred on law enforcement officers under the Criminal Procedure Act. The by-law now limits and explicitly states those powers of enforcement to:

• Direct a person to stop prohibited conduct, remove an obstacle, and to leave and remain out of a specified place
• Issue compliance notices as well as notices to appear in court or pay a fine
• Arrest a person who commits an offence in terms of the by-law and to search a person if necessary
• Impound goods and materials as per the City’s Standard Operating Procedure on the Impoundment of Goods and Animals, 2012
• Require identification

Powers must be used reasonably and constitutionally as per Section 9(6)

The arbitrary exercise of power by officials is prohibited by section 9(6) of By-law which reads:

9(6) In taking any of the steps contemplated in this section-

(a) every authorised official must-

(i)        exercise their powers reasonably with due regard to every person’s fundamental rights under Chapter 2 of the Constitution;

(ii)       if force is required under the circumstances, the level of force is justifiable and proportional; and

(iii)      in the absence of an authorised official contemplated in paragraph (b), take steps to prevent any other authorised official from exercising powers in contravention of sub-paragraphs (i) and (ii);

(b) the authorised official in charge must intervene and take the necessary steps to curtail any unreasonable exercise of powers or disproportionate use of force by any other authorised official under the command of that official.

The by-law is aligned to the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act

It is further incorrectly claimed that the draft by-law allows for the removal of any structure, including what would be regarded as a dwelling under the PIE Act.

This is completely false. The by-law in fact clearly specifies the conditions upon which a structure can be dismantled to protect land from illegal occupation, stating that ‘authorised officials may dismantle the structure and impound the intended occupiers building materials and possessions if the structure is on land under the City’s control, on a public thoroughfare, or not yet capable of constituting a home on any other land’.

Unlawful Occupation is already an illegal act

Finally, it is worth pointing out that unlawful occupation is already an illegal act as defined by common, statutory, and public law legislation in South Africa.

The City will always act to protect municipal land from illegal occupation attempts. We owe this to future generations of a growing city who will require land for schools, hospitals, transport, housing, community facilities, and more.

It is telling in this instance that opposition to the by-law relies no distortions and not merits.

Source: City of Cape Town