SAPS members allegedly stood by and did not intervene when the Goedehoop Rental Complex – a building owned by non-profit housing agency Communicare – was hijacked in Cape Town this month.

SAPS cited the Covid-19 disaster regulations as the reason for non-intervention.

Later, they advised the owners of the property to apply for eviction under the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act.

Marlon Shevelew, director of Marlon Shevelew and Associates Inc, says this incident raises questions about whether the lockdown regulations and the PIE Act prevent the police from doing their job to protect the rights of SA property owners.

In his analysis on the Daily Maverick site, Shevelew says there is a need for compliance with the provisions of the PIE Act in situations where unlawful occupiers are in fact residing in a property and are using it as a dwelling.

In City of Cape Town v Rudolph and Others, the court found that those described as ‘land grabbers’ cannot be excluded from the concept of ‘squatters’ – they fall within the terms of the definition of ‘unlawful occupier’ and they are therefore entitled to the protection for which the legislature enacted the PIE Act.

Shevelew says the question of trespassing is ‘another interesting one’.

In Du Plessis v State, Rogers J commented that the procedure of criminal court was ill-suited for compliance with the procedures of the PIE Act, and that prosecutions for trespassing should not be used to evict a person without compliance with the provisions of the Act.

Shevelew says the mere fact that unlawful occupation of a property amounts to trespassing is not a reason to disregard the Act.

‘The correct approach is to evaluate the nature of the occupation to determine if the right to housing is implicated. In an instance where the SAPS is observing people forcing access to a property that they don’t yet occupy, it is clear that they are trespassing and that the property is not being used as their home.’

Shevelew says this was the case for Communicare; the PIE Act and the lockdown regulations did not apply and were not a reason why SAPS should have stood by idly when the property was being overrun.

Noting that the failure of the SAPS to prevent trespass was a failure to uphold the rule of law, Shevelew says the SAPS’ reliance on lockdown regulations to justify such a failure ‘is opportunism at its worst’.

Full analysis on the Daily Maverick site