One sunny July morning in 2020, Bulelani Qolani was washing inside his corrugated-iron shack in Ethembeni informal settlement when his door was kicked in. Four officers from Cape Town’s Anti-Land Invasion Unit banged on the metal roof, yelling at him in racist and derogatory terms to get out.
“There was no engagement, no explanation,” says Qolani. “I tried to get out of the house. Then I realised people had gathered outside and I was naked. I tried to go back in because I was ashamed and embarrassed.”
The officers pepper-sprayed him before punching and kicking him; one pushed him to the ground until he managed to break free and run back inside. While he sat on his bed, his shack was torn down around him before officers moved on to destroy other dwellings. The incident was caught on video, uploaded on to social media with Qolani’s permission, and covered extensively in the media.
As a result of this and previous evictions at the height of the pandemic, the South African Human Rights Commission sued Cape Town council. The city’s conduct was ruled unlawful, with one of the judges commenting that the evictions policy was “reminiscent of apartheid-era forced removals”.
Two years on, a new bylaw has been passed that criminalises the act of occupying public and private land, legitimising the authority’s behaviour. Civil society organisations and informal settlement residents say the law targets the poor, criminalises poverty, harks back to apartheid legislation and contravenes South Africa’s constitution.
According to the city of Cape Town, the bylaw aims to “prevent the unlawful occupation of land and buildings; and monitor, control and regulate the growth of informal settlements within the city”.
Under the bylaw, officials can dismantle a structure and impound the occupier’s possessions if it is on city land, or on any other land if the structure is “not yet capable of constituting a home”. It grants “authorised officials” the power to arrest without a warrant, impound building materials, and identify areas that could be unlawfully occupied. Those convicted face fines or up to two years’ imprisonment.
Since the Covid pandemic, the number of slums in Cape Town has proliferated amid an already massive shortage of affordable housing. Malusi Booi, the city’s mayoral committee member for human settlements, says: “There are 186 newly formed Covid-19 pandemic-related settlements. Close to 70,000 new structures were erected over the time of the national disaster regulations.”
In 2020 and 2021, 51.6 hectares (128 acres) of city-owned land was “lost” to these settlements, he says, and 62% of those were built in “high-risk areas not suitable for human habitation or where no services (water, electricity) have been, or will be, installed”.
A new informal settlement known as “Covid”, near to where Qolani lives in Ethembeni, fits into this category as it is located on a nature reserve vulnerable to flooding.
Here, 87,000 people live in shacks of wood and corrugated iron. There is no running water or electricity – six people have died trying to connect their homes to the mains electricity supply. Toilets used to be an open hole in the ground until a child fell into one and drowned; now they are covered.
Heaps of rubbish lie around the settlement because there are no waste-collection services. Dead bodies have reportedly been found in the river running through the settlement. Many residents struggle to feed themselves, and some living with chronic illnesses have died after skipping medication that needs to be taken with food.
Yet the settlement is organised, and people have set up small businesses such as hair salons, shops and cafes.
Luthando Mcuntula, 30, and Xola Mphithi, 43, are on the settlement’s leadership committee. They both moved here in the early months of the pandemic after losing their jobs and having to move out of rented accommodation.
“We stay here because we have no choice,” says Mcuntula.
Many of the residents are former “back-yard dwellers” (people renting space on pockets of land around other’s homes) who were illegally evicted by landlords, or people whose income was shattered by the pandemic and subsequent lockdowns. Jobs remain scarce, with one in three South Africans unemployed.
Like Qolani in Ethembeni, residents here have been targeted by Cape Town police. Even before the bylaw, shacks were being demolished at all hours of the day and night, and residents claim they have been shot at with rubber bullets and sprayed with teargas. Others have been hit with live rounds while protesting about their living conditions.
“This is apartheid,” says Mphithi. “The majority here are black people. People who don’t have a place to stay are black people. You will never find a white person staying in these shacks.
“We stay here because we can’t do otherwise. I can’t pay rent because I’m not working. Our children are traumatised; they read about apartheid, but it’s happening now.
“It’s not nice to stay here but we don’t have any alternative,” says Mphithi.
According to Ndifuna Ukwazi, an activist organisation and law centre, the unlawful occupations bylaw “reflects an approach to informality that echoes the apartheid government’s displacement and forced removal of black and coloured people from urban centres”.
It says the bylaw circumvents protections afforded to unlawful occupiers in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (known as the “Pie act”), which sets out to prevent arbitrary evictions, and the South African constitution, which says no one can be evicted without a court order.
Mpho Raboeane, a lawyer for Ndifuna Ukwazi, says: “There are quite a few problems with the bylaw but paramount is the criminalisation of occupation which, given South Africa’s context and history, takes us back to apartheid-era thinking. Moreover, it is targeted at poor people and weaponises the use of legislation against them.”
There have been two petitions to repeal the legislation so far; one gathering 8,000 signatures, the other with 5,000.
Jean-Pierre Smith, Cape Town’s mayoral committee member for the safety and security department, disagrees with the critics. He says the bylaw is “a remedy to the legacy of the Pie act”, which he says “has been broken for decades”, is “deficient” and lacks clear definitions of what constitutes a home.
He says the Pie act, along with court rulings in Cape Town, mean the city cannot remove any structure once it has been established. “If you pop out a tent on a sidewalk in front of the state president’s home, that is immediately your home,” he says. “That should ring a bell to you as irrational or unsustainable.”
As a result, he adds, numerous wetlands and other nature reserves, sites set aside for housing, and millions of rand have been lost, he adds.
Mzwakhe Nqavashe, author of the bylaw and chair of Cape Town’s safety, security, and human settlements committee, rejects the criticism. “The bylaw criminalises unlawful acts. It is not bringing any apartheid [laws] because national legislation criminalises trespassing and unlawful occupation.”
Back in Ethembeni, Qolani sits on his bed in the shack he has had to rebuild four times. He tried working as a taxi driver when lockdown restrictions eased, but people recognised him as the naked man from the viral eviction video, and he found it deeply traumatising.
He does odd jobs for cash now and is suing the city, seeking damages for the humiliation and bodily harm its officers caused him.
Qolani is now focusing on building his community, starting with blocking off with rubble areas vulnerable to flooding. “We know the city of Cape Town is ignorant to our cause,” he says. “That’s why we are taking the initiative. I want my children to have a place they can call home.”
