Cape Town mayor Dan Plato on Tuesday said the city would appeal a high court ruling barring the city from removing land invaders from public land as it set a dangerous legal precedent that would undermine property rights.

"As mayor, I have today instructed the City of Cape Town’s legal team to appeal the Western Cape High Court’s order granting an interdict removing the City’s right to protect property from land invasion."

Plato noted that the litigants, the South African Human Rights Commission (SAHRC) and the opposition Economic Freedom Fighters, had expressly sought an order that in effect prevents land owners from resorting to counter-spoliation. 

That part of their application will be dealt with in the second part of the court ruling, due in October.

On Tuesday, Judge Yasmin Meer confirmed that the city and its anti-land invasion unit were interdicted from demolishing or evicting anybody from any dwelling while South Africa's national state of disaster relating to the Covid-19 pandemic was in place, unless they had obtained a court.

Should officials be in possession of a court order, they had to act in manner that protected the dignity of those whose dwellings were being demolished.

The city held argued that it had only demolished unoccupied structures during the coronavirus lockdown but the court criticised the municipality for allowing its officials to determine on no more than sight whether dwellings were occupied or not.

Meer said this amounted to city officials sitting as judges in their own case and allowing them to act in an arbitrary and unfair manner.

Plato said the city has had to contend with an unprecedented spate of land invasions during the lockdown.

"Since 1 July, the city’s land protection efforts have led to the removal of over 55 000 illegal structures in around 30 different parts of the metro. There have been well over 100 separate land invasion incidents recorded."

He said the city had to counter land invasions to uphold the rule of law and protect land for service delivery purposes.

"The granting of an interdict preventing the City from conducting any counter-spoliation to protect public land without a court order goes far beyond what the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act allow," Plato said.

It sets a dangerous precedent for all landowners. If left unchallenged, the interdict would make it almost impossible for landowners to protect their property from unlawful occupation and to prevent people from establishing homes, albeit unlawfully, on the property of others.

Plato said if the applicants were successful in obtaining an interdict preventing counter-spoliation, this would have a ripple effect on land rights beyond Cape Town to the rest of the country.

The SAHRC and the Economic Freedom Fighters went to court following the controversial eviction of Bulelani Qolani from his shack in Khayelitsha in July while he was undressed.