Occupiers of Transnet land in Woodstock and Salt River have failed in their bid to appeal an eviction order, with the Western Cape High Court finding that they had not shown a realistic prospect of success.

Judge Derek Wille delivered the ruling on 28 September, refusing the application for leave to appeal against eviction orders granted in July.

The occupiers argued, among other things, that they should not be evicted without alternative emergency accommodation. But the court found that while the availability of alternative accommodation is an important consideration, it is not an absolute requirement before an eviction can be granted.

Judge Wille said the occupiers had also failed to provide sufficient direct evidence about their individual circumstances or to establish that the eviction would leave them homeless.

Of around 281 people represented in the matter, only 106 additional affidavits were submitted after the court specifically gave the occupiers an opportunity to provide information about their personal circumstances.

But the judge said no proper details were made available in the affidavits and some statements conflicted with evidence from a spokesman.

Housing-rights organisation Ndifuna Ukwazi represented the occupiers.

Evidence of tunnels and criminal activity

The judgment also refers to evidence presented by the City of Cape Town, which was a respondent in the case, about criminal activity in and around the occupied properties.

The court considered crime statistics, the geographical concentration of criminal activity, the physical features of the properties and evidence gathered during an inspection in loco.

During the inspection, the court said a series of tunnels was discovered beneath the occupied properties, which were alleged to have been used to store drugs and stolen goods.

The court considered the tunnels alongside crime statistics and other evidence, including what it described as the undisputed existence of tunnels and structures within the occupied areas.

Judge Wille said the evidence supported the inference that the property was being used as a base for criminal activity, while the occupiers had relied largely on general denials and had not substantively challenged the findings from the inspection.

The court stressed that this was not a criminal trial and that it was not necessary to prove that specific occupiers had committed specific crimes. The issue was whether the evidence as a whole supported the inference that the occupation was being used as a base for criminal activity, and whether that was relevant to the eviction enquiry.

The court ultimately found that the occupiers had not established either a realistic prospect of success on appeal or another compelling reason for an appeal to be heard.

The application for leave to appeal was therefore refused, with no order as to costs.

The original eviction order gave the occupiers until 30 September to vacate the premises. It remains to be seen whether the occupiers will now leave on their own, or whether the sheriff of the court will enforce the eviction order.

An attorney at Ndifuna Ukwazi Law Centre told GroundUp that they would study the judgment, consult with clients, and discuss their legal options.