Squatters at Cape Town’s Waterfront could go to the Constitutional Court to fight their eviction, reports Gustav Thiel
NEARLY 300 squatters living next to a proposed new entrance to the upmarket Victoria & Alfred Waterfront in Cape Town could force the Constitutional Court to assess the constitutionality of the Prevention of Illegal Squatting Act.
According to Matthew Chaskalson, a constitutional expert at the Centre for Applied Legal Studies in Johannesburg, a provision in the Constitution clearly states that the decision to evict should lie in the hands of the courts – yet, countrywide, evictions are being carried out by city councils on their own initiative.
The squatters, living at the site opposite Port Road and next to the well-known Arena nightclub, say they have been there for more than ten years on average and are eager to stay. The Cape Town City Council tried to evict them on three different occasions last year, but withdrew each time when lawyers for the squatters threatened court action.
Steve Kahanowitz of the Legal Resources Centre in the city said that the city council backed down before Section 3b of the Act could be tested in court. The section says that squatters may be removed by city councils without the consent of the courts.
“We firmly believe that the section of the Act will eventually be removed from the statutes because it is clearly unconstitutional,” Kahanowitz said.
“It is also clear that city councils in the Western Cape are aware of this fact because they are apparently not willing for the Act to be challenged in court.” The councils had withdrawn on all seven occasions when they were taken to court.
“It seems to me that the city councils try to get away with evictions when they are not challenged in courts, but back down the minute the opposite happens,” he said.
A Cape Town City Council legal representative, Fiona Ogle, said Section 3b was “probably” against the spirit of the Constitution.
But she denied that city councils in the Western Cape tried to avoid testing the issue in court.
Activists for the homeless say squatters’ rights could be dramatically improved once a test case has made it into the Constitutional Court.
Kahanowitz did, however, agree that the Port Road squatters are living in a particularly sensitive area of Cape Town, where thousands of local and foreign tourists will enter the waterfront tourist mecca if the proposed new entrance is approved.
The manager of the Arena nightclub, Robert Barry, said the presence of the squatters causes “great damage to the image of Cape Town as a prime tourist destination”.
He added: “We have complained to the police and the Cape Town City Council on numerous occasions about the squatters and promises have been made that they will be removed. We frequently experience violent behaviour by the squatters which must be detrimental to our business.”
Nomsa Ndlumbini, who runs a shop in the squatter community, said: “Some people have been living here for more than 20 years and have nowhere else to go.”