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31/03/2018 12:25 SAST | Updated 31/03/2018 12:25 SAST

Olievenhoutbosch Land Occupation: Urgent Court Application Dismissed

The judge said it was not required that a court order be issued to compel the police to do what was required.

Siphiwe Sibeko / Reuters
A man is seen digging to mark out vacant land in Olievenhoutbosch near Centurion in March 2018.

An urgent application seeking that police be ordered to remove trespassers from privately owned land in Olievenhoutbosch, Midrand, was dismissed by the High Court in Pretoria on Friday.

Judge Shahnaz Miah said it was not required that a court order be issued to compel the police to do what was required.

Several property owners had approached the court following an attempted land occupation in Olievenhoutbosch, where it was alleged that more than 1,000 people had been demarcating stand-sized portions of land and pegging them off since early March.

According to the applicant's attorney, Zehir Omar, one of the landowners approached the Olievenhoutbosch police station for assistance to remove the trespassers.

The police were allegedly unresponsive and refused to open a docket. He approached the police the following evening and succeeded in laying charges of trespassing, but police still refused to go to the premises.

Only on March 11 did a police officer go to the scene to evaluate the situation.

Omar explained to the court that they needed an order compelling police to act immediately in removing trespassers because "as soon as a structure has been erected, the person living there has control over the structure".

This meant that the occupiers would no longer be seen as trespassers, and would instead become illegal occupiers who could only be evicted by a court order, executed by the sheriff of the court.

He argued that the National Instruction 7 of 2017 gave the police directives on how to deal with trespassers, and that they should be arrested as soon as possible, after a complaint was received.

Siphiwe Sibeko / Reuters
Noluthando Mswane gestures as she uses a spade to mark vacant land in Olievenhoutbosch. March 12, 2018.

The applicants also wanted an order that a name and contact number of a designated officer be given to them, as well as for an immediate response by the public-order police to any complaint made by the applicants.

Advocate Lerato Maite, who represented the Minister of Police, the Olievenhoutbosch station commander and the provincial police commissioner, told the court that officers had responded to the complaints by the property owners

Maite said no delay could be attributed to the police, and pointed out that the trespassers came onto the properties in the evening, whereas that the landowners only went to the police the following morning.

She further argued that police effecting an arrest was dependant on the persons being identified, and that the perpetrators were not identified by the complainants.

READ: Ramaphosa: No Need For Panic Over Land Expropriation

The city of Tshwane was also listed as a respondent, with Omar arguing that the city should bear responsibility because it failed to address the needs of "thousands of people living in abject squalor".

"If [the city of Tshwane] took a proactive approach, we would not be in this position."

Advocate Kabelo Bokaba, who represented the city of Tshwane, told the court that the municipality was under no obligation to assist with the removal of trespassers.

In her judgment handed down on Friday, Miah said the land in question was private property, and that there was nothing which prevents the applicants from taking "reasonable steps" to ensure that the land was not trespassed on.

"The effect of the order sought should, however, have the impact of redirecting the first to third respondents' resources to protecting the unfenced undeveloped land of the applicants in the face of limited resources in the community," Miah added.

Miah also recognised the constraints and limitations of the police's resources, saying they could not be in all places at all times.

She said the citation of the city of Tshwane was premature in the proceedings, and that the municipality has no general obligation to prevent trespassing.

Miah also decided that each party should pay its own costs, after the applicants and all respondents asked for a cost order.