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The Balance between the Protection of Ownership and Unlawful Occupation in South African law.

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Authored By: Precious Khumalo

UNISA

In this article we will be expanding Property Law which forms a fundamental part of the legal system, governing relationships between individuals and things and as well as between individual themselves relating to those things. At the heart of this field is the concept of ownership, which is regarded as the most comprehensive real right a person can have in respect of property. On the other hand, there is a good fight between having ownership and unlawfully occupying land that is whether privately or publicly owned.

In South African history land has been one of the national assets; when the Dutch occupied the Cape Colony in around 1652 taking over from the earliest inhabitants, this turned the whole land history into an issue of race and power.[1] While ownership is traditionally seen as having a right to use, enjoy and dispose of property; these entitlements are not absolute because they are subject to limitations imposed by legislation and the Constitution.

This article seeks to examine the nature and content of ownership in South African property law, with intentional focus on its characteristics, limitations and constitutional implications. While we will not only be examining that; we will be looking into how unlawful occupation impacts the exercise of ownership rights. Focus will be given to the role of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Let us begin with what ownership is? It is the state or fact of legal possession and control over property, which may be any asset, movable, or immovable.[2] With that said it is regarded as the most comprehensive right to property, granting the owner certain rights; like the use of the property, the enjoyment of the property and disposal of the property. However, with modern rights and Acts that have been amended and put in place to regulate, ownership is no longer seen as an absolute right.

Section 25 of the South African Constitution is there to ‘protect the right to own property while empowering the government to expropriate property for public interest or land reform, subject to just and equitable compensation’[3].In a nutshell what does this mean, it means that I can own property and have the right to use, enjoy and dispose of it. However, also the government can at any time expropriate my property for public purposes or in public interest subject to compensation. Ownership of immovable property (land and houses) does not only give individuals rights over the property but also provides the owner with legal solutions to protect their rights against unlawful interference. One of the most issues around property is the owner reclaiming possession of their property from any person who is in unlawful possession of it; such solution is called rei vindicatio. In the case of Naidoo and Another v Chetty and Others (6546/06) [2010] ZAKZPHC 104 (3 December 2010),[4] we see how the rei vindicatio was applied where the defendant had the onus to prove a legal right to occupy. This case is relevant in the property law as it shows how ownership can be interfered by other individuals and how the courts play a role in reinforcing the owners’ right to reclaim their property.

Integrating from the above paragraph, we step into unlawful occupation; which is the most significant challenges South Africa faces on a daily. Unlawful occupation is when individuals occupy land or property without consent of the owner or without any legal right to do so. Typically, one would think that they have every right to evict anyone who is unlawfully occupying their property. However, the Constitution now has in place Section 26, which guarantees the right to access adequate housing; immediately after reading that part, an irate owner would normally say “what?! My property is their adequate housing?”, under the law we can confirm that. Because section 26 protects unlawful occupiers, particularly those who are vulnerable and homeless, especially women, children, the disabled and the elderly. So now, this goes to show that the law protects both the owners and the unlawful occupiers under certain circumstances. This whole concept significantly limits the owner’s ability to simply evict people; the owner would have to follow legal proceedings to attempt evictions and not do it themselves as that is illegal to do; and two wrongs do not make a right. Case reference is Smith v Khumalo and All the Unlawful Occupiers of the Property and Another (47400/21) [2024] ZAGPJHC 492 (10 May 2024), here we witness the courts acknowledging the concerns of the unlawful occupiers but found that it was “just and equitable” to grant the eviction order due to the elderly owner undesirable living conditions. The unlawful occupiers here argued that the municipality has not given adequate housing as promised and that they are close to being homeless; while the court found that the occupiers also have not taken sufficient steps to find alternative accommodation. The court ruled in favour of the applicant. [5]

In the case of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CCT 37/11) [2011] ZACC 33; 2012 (2) BCLR 150 (CC) (1 December 2011), here we see how the unlawful occupiers are protected by the Constitution. This is the case of 86 people who were occupying a building that has had a few owners until 2004 where the new owner, which was Blue Moonlight Properties, commenced with the eviction proceedings in order to redevelop the property. The occupants argued that should they be evicted they would be rendered homeless; bear in mind this group of people were majority headed by women and was inclusive of children and the elderly. Different to our previous mentioned case, here the courts had to exercise the protection of unlawful occupiers as to tell the owner to endure unlawful occupation temporarily until the government can provide alternative accommodation.[6]

The strain between property rights and unlawful occupation is primarily addressed through the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The PIE Act was enacted to give effect to Section 26(3) of the Constitution, which states that ‘No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions’[7]. The Act essentially changed the legal position by requiring that evictions be “just and equitable”, meaning that the courts not only considers your right as the owner but also looks into the unlawful occupants situation; the availability of alternative accommodation, how long have the unlawful occupants been occupying the property, are they elders, children, women or individual with disabilities. Remember, our Constitution is there to provide and protect everyone under the sun, so in as much as they are unlawfully occupying property they do not own, they are to still be treated as humans with human dignity (Section 10 of the Bill of Rights).

In essence, the PIE Act seeks to balance the rights of owners with the need to protect unlawful occupiers from arbitrary evictions; in this way the Act reflects the constitutional commitment to human dignity and everyone’s rights. This approach was strongly affirmed in the case of Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 BCLR 1268 (CC) (1 October 2004).[8]

The concept of ownership in South African property law remains one of the most significant real rights, affording the owners powers over their immovable property. These powers include the use of property, enjoying the property, and disposing of the property. However, as stated in the article, ownership is not absolute and must be understood within the framework of constitutional values.

The shift in unlawful occupation rights has challenged the traditional ways of dominance over property, particularly the right of access to adequate housing. The Constitution of the Republic of South Africa 1996 plays a significant role in this regard, requiring courts to balance the rights of property owners against the needs and dignity of unlawful occupiers.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 serves as the key instrument in achieving this balance. By requiring that evictions must be just and equitable, the Act ensures the rights of vulnerable occupiers (in some situations) are protected while still recognising and acknowledging the legitimate interests of property owners.[9]

The modern law of property in South Africa reflects a shift and huge transformation from the 1900’s, it shows how the law is slowly moving towards including every human under the Constitution. Our Constitution strives to be fair and just in every action; and the PIE Act not only shows that, but case laws are evidence to our transformative nature in a constitutional democracy. While ownership continues to provide strong protection to property holders, its exercise is now carefully regulated to ensure that it does not unjustifiably infringe upon the fundamental rights of others.[10] This article was written to highlight the importance of everyone and that the law protects us all. The balance between property ownership and unlawful occupiers is regulated.

Bibliography:

Legislation

  • Constitution of the Republic of South Africa, 1996
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Cases

Online Sources

[1] South African History Online, The Dutch Settlement. South African History Online. https://sahistory.org.za/article/dutch-settlement accessed 31 March 2026 – 15:00

[2] Ownership – Wikipedia https://en.wikipedia.org/wiki/Ownership accessed 31 March 2026 15:17

[3] Property rights – Constitutional Court Art Collection https://ccac.concourttrust.org.za/constitutional-links/property-rights-section-25 accessed 31 March 2026 15:45

[4] SAFLII – Southern African Legal Information Institute https://saflii.org/za/cases/ZAKZPHC/2010/104.html Naidoo and Another v Chetty accessed 31 March 2026 16:52

[5] SAFLII – Southern African Legal Information Institute https://www.saflii.org/za/cases/ZAGPJHC/2024/492.html Smith v Khumalo accessed 31 March 2026 17:04

[6] SAFLII – Southern African Legal Information Institute htpps://www.saflii.org/za/cases/ZACC/2011/33.html  City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties accessed 31 March 2026 17:25

[7] Constitutional Court Art Collection – CCAC https://ccac.concourttrust.org.za/constitutional-links/housing-rights-section-26 accessed 31 March 2026 17:37

[8] SAFLII – Southern African Legal Information Institute https://www.saflii.org/za/cases/ZACC/2004/7.html Port Elizabeth Municipality Various Occupiers accessed 31 March 2026 18:03

[9] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 https://www.saflii.org.za.legis/num_act/poiefauoola1998627.txt accessed 31 March 2026 18:50

[10] Section 25 and Section 26, Constitution of the Republic of South Africa 1996

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