Authored By: Nontuthuko
University of KwaZulu-Natal Howard College
ABSTRACT
South Africa constantly and currently struggles with informal settlement arrangements in terms of legal acceptance, structure, locations, living conditions, and evictions (mostly illegal). The statistical rate of informal settlements in South Africa currently stands between 11.7% to 12.2%, with the effect of overcrowding urban areas. Places such as Durban (the major capital city) and neighbouring places are predominantly dominated by informal settlements/shacks. Shack dwellers continue to live under unfavourable conditions. They face dire health issues and are subjected to illegal evictions authorised by the municipalities and the government to accommodate the well-off people or further upgrade and build on the spaces they had made their homes. This article serves as a communication tool about the inconsistencies of the law, the poor treatment of shack dwellers, and how they are constantly marginalized and excluded when the cities are upgraded. Furthermore, this article explores the intersection of extreme poverty, systemic housing failure, and resilient community action while discussing the criminalization and assassination of activists who dare to fight against daily struggles for basic services, to the complex legal battles over land and dignity. How the courts navigate shack dwellers’ evictions is discussed using South African case law, such as that of Grootboom, focusing on how the law has evolved since this judgment. This article, moreover, focuses on legislation such as the “Slums Act” and Policy and the Prevention of Illegal Eviction Act (PIE), explores the rights and protection of dwellers guided by Section 26 of the Constitution of the Republic of South Africa 1996. Lastly, it delves into the reforms and organisations at the disposal of the dwellers, along with their challenges, and how these have been both effective and detrimental to the shack dwellers.
- INTRODUCTION
Rapid urbanization, unemployment, and the lingering effects of apartheid spatial planning are all strongly associated with the expansion of informal settlements. Rural migrants seeking economic opportunities have been steadily moving into cities like Durban, only to find that the housing market cannot keep up with demand. Because of this, informal communities have grown on marginal terrain and frequently lack access to electricity, water, sanitary facilities, and waste disposal. Shack dwellers continue to be among the most vulnerable populations in society, notwithstanding constitutional protections and a substantial body of progressive jurisprudence. Insecure tenure, limited access to essential services, and the continual fear of eviction all influence their day-to-day lives. Strategies for urban development, which are typically presented as essential for economic expansion and civic “upgrading,” have often worked against the poor, strengthening rather than eradicating spatial segregation. The core of South Africa’s housing dilemma is the conflict between development and dignity. The experiences of shack dwellers show a disconnect between the legal promise and lived reality, despite the Constitution’s ideal of a transformational state dedicated to substantive equality.
1.1 Lack of basic services
Many settlements do not have consistent access to clean water, adequate sanitation (toilets), or official garbage collection. This frequently leads to unauthorized electricity connections, which pose serious safety hazards. Settlements are usually built on marginal soil, leaving them extremely susceptible to periodic flooding and shack fires. These calamities cause fatalities and property damage, as well as significant disruptions to education and employment. Overcrowding and inadequate waste management promote the rapid spread of infectious diseases, including tuberculosis (TB) and HIV/AIDS. Furthermore, chronic insecurity frequently leads to mental health problems such as increased worry and depression.
- CONSTITUTIONAL FRAMEWORK: The right to property (Section 25) and the right to adequate housing (Section 26)
2.1 Section 25 The right to property. Section 25(5) requires the State “take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
2.2 Section 26: The right to adequate housing
“Everyone has the right to access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 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.”
This implies that every South African citizen should have a respectable, safe place to live rather than just any kind of shelter. It is illegal to take you out of your house without following the correct legal procedures. It is the duty of the government to continuously improve housing access through programs, budgets, and regulations. Regardless of ownership status, your dwelling security is protected by the Constitution. The Constitutional Court has often emphasized that human dignity, equality, and life have an unbreakable connection to housing rights. The right is more than just programmatic; it places specific duties on the state to behave sensibly and empathetically, especially with regard to the most vulnerable.
However, it is very disheartening that even with these laws in place, there are people still not being catered to by the system. Shack dwellers often face illegal evictions by the government, municipality, and private landowners. Thousands are left without shelter due to being the most vulnerable to natural hazards and slow-paced help from those in authority when affected by such harsh weather conditions. Living conditions within these settlements pose serious health and safety risks. Overcrowding, fire hazards, flooding, and the spread of communicable diseases are common. Despite this, informal settlements are frequently treated as temporary anomalies rather than permanent communities, leading to policy responses that prioritise removal over meaningful integration.
2.3 Judicial Development: From Grootboom to Contemporary Eviction Jurisprudence
In Government of the Republic of South Africa v GrootboomMrs. Irene Grootboom spoke on behalf of 900 Wallacedene residents who reside in informal settlements. There was no electricity, water, or sanitary facilities. Residents of New Rust, a private property they had taken over out of desperation, were brutally and forcibly evicted, their dwellings destroyed, and they were left without a place to live. They requested assistance from the court, arguing that Section 26 (Housing right) and Section 28(1)(c) (Children’s right to shelter) require the government to give them temporary housing. Based on Section 28(1)(c), the High Court decided in favour of the residents. However, the government appealed the decision to the Constitutional Court. The state’s housing program was deemed unreasonable by the Constitutional Court since it did not provide for those in extreme need. The Court affirmed that emergency housing relief forms a core component of the state’s constitutional obligations.
This body of law has been expanded by later cases. The Court established the idea of “justice and equity” as the governing standard in eviction proceedings in Port Elizabeth Municipality v. Various Occupiers, highlighting the necessity of empathy and compromise. Meaningful interaction between the state and impacted communities was acknowledged as a constitutional requirement in Occupiers of 51 Olivia Road v. City of Johannesburg. Implementation is still uneven in spite of these advancements. Courts frequently render progressive rulings, but municipalities do not adopt these ideas, which leads to recurring legal disputes and persistent violations of human rights.
- Legislative and Policy Framework
3.1 Prevention of Illegal Eviction Act (PIE)
PIE gives effect to section 26(3) of the Constitution by regulating evictions and requiring courts to consider factors such as the availability of alternative accommodation, the rights of vulnerable groups, and the duration of occupation. While PIE is a powerful protective instrument, its effectiveness is undermined by poor enforcement and deliberate non-compliance by state actors.
3.2 The “Slums Act” and Provincial Interventions
As implied by its title, the Slums Act was designed to prevent KwaZulu-Natal’s slums (informal settlements) from being rebuilt. The Act granted provincial authorities the authority to compel private landowners and municipalities to evacuate inhabitants of informal settlements. This Act was criticized by Abahlali BaseMjondolo for enabling evictions without sufficient protection. Because the Slums Act infringed the rights of unlawful occupiers, including the guarantee against arbitrary evictions under Section 26(3) of the Constitution, AbM argued that it was unconstitutional. Section 16 of the Slums Act was declared invalid by the Constitutional Court. This case struck down the “Slums Act,” ruling that “slum eradication” cannot bypass the PIE Act protections. Its eventual constitutional invalidation reaffirmed that housing policy cannot override constitutional rights.
- Reform and Community Resistance, Assassinations, and police violence
Abahlali baseMjondolo Movement is a South African organisation representing thousands of people who live in informal settlements. However, engagement with the legal system is not without cost. Prolonged litigation, exposure to retaliation, and the slow pace of reform can exhaust communities and, in some instances, deepen vulnerability. Reform efforts must therefore be accompanied by genuine political will and institutional accountability.
This organisation has had to face harsh punishments from the law, followed by assassinations of its leaders for politically inclined reasons. In a press statement by Abahlali BaseMjondolo, the members expressed that “Our struggle for dignity, democracy, and autonomy has made us many enemies. Over the years, we have had our homes destroyed, been slandered, beaten, arrested, tortured, jailed, and murdered. The persecution of Abahlali comrades shows a clear nexus between their fight for land, housing, and dignity and the extremely violent response from those connected to political power in the area.”
One of the most obvious ways that the state exercises its control over shack residents is through evictions. Evictions are frequently justified by municipalities on the grounds of development imperatives, safety issues, or land invasion. In reality, a lot of evictions take place without proper notice, court orders, or alternative housing, which makes them illegal. In addition to being physically uprooted, shack residents are also being criminalized. Housing activists and community leaders who organize opposition to evictions or call for essential services often face intimidation, detention, and, in difficult situations, murder. Those most impacted by the shortcomings of housing policy are silenced, and participatory democracy is undermined by this atmosphere of persecution.
Conclusion
The South African housing crisis serves as a stark reminder of the shortcomings of formal legal protection due to its poor implementation. Even though the Constitution and the courts provide a solid basis for protecting shack dwellers, persistent evictions, marginalization, and violence against activists demonstrate that the law has not been translated into lived justice. Urban growth cannot be justified at the expense of dignity. The future of South African towns will depend on whether or not shack dwellers are viewed as citizens with rights who should be included, protected, and respected rather than as obstacles to development.
Bibliography
Case law
Abahlali baseMjondolo Movement SA v Premier of KwaZulu-Natal 2010 (2) BCLR 99 (CC)
Government of the Republic of South Africa and Others v Grootboom and Others (CC) (2000)
Occupiers of 51 Olivia Road, Berea Township v City of Johannesburg 2008 (3) SA 208 (CC)
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
Statute
Constitution of the Republic of South Africa, 1996 (S25(5), S26, S28(1)(C))
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
The Preamble of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act of 2007
Secondary source
Abahlali BaseMjondolo Press statement (23 Aug 2022) https://abahlali.org/in-memoriam/ Accessed 01 Feb 2026
