Supreme Court of Appeal blocks Tshwane’s bid to expropriate Kanana Village land

The Supreme Court of Appeal (SCA) has found the City of Tshwane’s attempt to expropriate privately owned land near Bronkhorstspruit unlawful, and has ordered the municipality to relocate the occupants of Kanana Village within one year.

Ruling and legal findings

In a unanimous judgment written by Judge Daisy Molefe, the SCA held that the municipality’s expropriation process was unlawful and could not be used to bypass an existing eviction order. The court gave the City of Tshwane a one-year deadline to relocate the settlement’s residents.

Background of the dispute

Kanana Village was established 21 years ago on the farm Kameelzynkraal in Pretoria East after the then-owner, Ben Gomeni, invited families displaced by unlawful evictions to occupy part of the farm. Gomeni died in December 2005, and the property was sold in March 2006 to Summer Seasons Trading, the current owner.

In 2011 the new owner brought an eviction application against the community. Lawyers for Human Rights (LHR) appealed to the Constitutional Court but were unsuccessful. Eviction orders were later secured in the high court.

Expropriation attempts and the high court

The City of Tshwane gave notice to the owner seeking to expropriate the land so the occupants could be permanently housed. However, the high court earlier declared the municipality’s expropriation process invalid after finding it had not followed due process.

The city conceded on appeal that neither the 2015 nor the 2018 expropriation notices could succeed and withdrew its challenge to the high court’s finding that those notices were invalid.

Arguments on both sides

Summer Seasons Trading challenged the legality of the expropriation process. The City’s counsel argued the high court erred in enforcing the long-standing eviction order without obtaining updated affidavits about the occupiers’ welfare or conducting an in loco inspection to see how the settlement had developed. Counsel asked for the matter to be remitted to the high court with fresh evidence about the potential impact of eviction.

It was said in court that the informal settlement had continued to grow, with new shacks erected despite court orders, and that the occupiers had formed a settled community of around 500 households. The court heard the municipality had installed water tanks and ablution facilities on the property.

Judge Molefe’s observation

While expressing sympathy with the occupants, Judge Molefe emphasised the legal limits on unlawful occupation. In the judgment she said:

“Homelessness in our country is a huge problem. However, land invasion should always be discouraged. While the Constitution guarantees everyone the right to have access to adequate housing, it does not give unlawful occupiers the right to choose exactly where they want to live, and the property owners are not expected to provide such occupation indefinitely.”

Next steps

The SCA’s ruling leaves the eviction order in place and requires the municipality to carry out relocations within the timeframe the court set. Lawyers for Human Rights and other parties had been involved in multiple court applications aimed at securing housing solutions for the occupiers.