And now the Judge President of the Western Cape division has decided to appoint three new judges to rehear the evidence from scratch, which will substantially delay the important hearing which had wide-spread ramifications for the powers of government and private landowners to stop invasions.

Initially it was hoped that the Judge President would just bring a third judge on board to break the impasse and the Western Cape Government issued a statement to this effect.

But on Wednesday, it announced that the initial communication from the Judge President was “an error” and the case would have to start de novo.

The Western Cape government is on tenterhooks awaiting the ruling which, it has argued, could set a “dangerous precedent making it almost impossible for landowners to protect their property”.

“The knock-on effect of the large-scale orchestrated land invasions we have seen is simply devastating for Cape Town, its communities, residents in general and the city,” Mayor Dan Plato says.

The case began as an urgent application by the South African Human Rights Commission, responding to a widely publicised eviction of a naked man from his shack during the hard Covid-19 lockdown.

The commission approached the court and obtained an order from Judges Shehnaz Meer and Rosheni Allie interdicting the the City of Cape Town, through its Anti-Land Invasion Unit (ALIU)  from evicting people or demolishing their structures, whether occupied or unoccupied, without a court order while the country remains in a state of national disaster.

The commission, with the Economic Freedom Fighters joining the fray, wanted the judges to confirm this order and rule that the common law remedy of counter-spoliation, which recognises an owner’s right to immediately retake possession of unlawfully-taken property, without approaching a court first, is unconstitutional.

At the beginning of the argument, which was heard via Zoom because of the pandemic, both judges cautioned the parties that the situation on the ground now was different to when the matter was first heard as a matter of urgency during the lockdown.

But the commission insisted that counter spoliation was contrary to the constitution.

The Western Cape government said it was vital to ensuring that violent and often orchestrated invasions of land were to be stopped.

Shack dwellers movement Abahlali baseMjondolo, which joined the proceedings as a friend of the court, said  permitting controlled occupation of land by people who would otherwise have nowhere else to go had to be part of any reasonable housing policy.

“There is an indisputable truth: those people will have to live somewhere. At least some of them will be driven to occupy vacant land because they have no other option available to them.”

In a statement, the government said it was disappointed that the case had to start again, because it would cost time and money.

It said the legal basis for the decision isn’t immediately apparent and the appointment of a third judge would have been “more practical, reasonable and legally compliant solution”.

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