Authored By : Lerato Mati
University of Fort Hare
Abstract
The Republic of South Africa guarantees the rights of citizens in the Constitution of the Republic of South Africa, 1996. To fulfil these rights, which include the right to basic housing facility and the right not to be unlawfully evicted inter alia, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) was enacted. Despite the provision of these rules and the application of precedent from previous case decisions, there are times when these rights are not sufficiently fulfilled. However, if the courts were to apply these rules strictly, they would be fulfilled. This article, therefore, emphasises how the law is not only black and white in colour, but has grey areas in between.
Introduction
1.1 Background and Context
The legal system in South Africa gives rights to its citizens that are guaranteed in the Constitution of the Republic of South Africa and in legislation. This is because of the rights guaranteed in Chapter 2 of the Constitution, the Bill of Rights, which “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Section 26 of the Constitution guarantees the right to adequate housing and that no one may be evicted from their home inter alia, without an order of court after considering all relevant circumstances. Similarly, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 is a provision that governs the eviction of unlawful occupiers and ensures that evictions are within the Constitutional framework. It provides for the prohibition of unlawful eviction, sets out the requirements for the eviction of unlawful occupiers, and specifies the grounds under which the order may be granted.
1.2 The problem/grey area
Despite being granted all these rights, there are instances where unlawful occupiers are illegally evicted, regardless of these protections by the Constitution and legislation. There are instances of inconsistency in the laws, where the Constitutional requirement and the PIE Act serve as a checklist without the rule of ‘just and equitable’ being enforced on a broad scale.
1.3 Purpose and scope of the article
With reference to the above implications, this article will examine inconsistencies between the courts and the law regarding the Constitution and the PIE Act, analyse landmark and recent court decisions on unlawful eviction, and propose reforms to adequately safeguard the guaranteed rights and protections.
1.4 Thesis Statement
Various Evictions in South Africa fail to meet Constitutional standards and the ‘Just and Equitable’ rule of the PIE Act.
- Legal Framework for Evictions
The law that governs evictions includes section 26(3) of the Constitution, which provides that “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.”. This section grants this right to citizens, and the courts should consider all relevant circumstances before issuing an eviction order. The granting of this also ensures the rights in the Constitution’s Bill of Rights, including the right guaranteed in section 9, which provides for the right to inherent dignity.
The PIE Act is the statutory provision governing unlawful evictions. The purpose of the act is to prohibit illegal evictions, provide procedures to be taken for the eviction of unlawful occupiers, repeal the Prevention of Illegal Squatting Act No 52 of 1951, and apply to similar matters.
Section 4 further sets out the requirements that must be met before unlawful occupiers can be evicted. This includes the requirement that the unlawful occupier and the municipality of the jurisdiction be informed 14 days before the hearing. Section 4(6) provides that if an unlawful occupier has occupied the property for less than 6 months, an eviction order may be granted if it is just and equitable and all relevant circumstances are considered. Section 4(7) provides that if the unlawful occupier has occupied the land for more than 6 months, an eviction order may be granted if just and equitable and all relevant circumstances are considered, with exceptions to certain circumstances provided in s4(7).
Section 5 of the PIE Act provides for the rules for urgent proceedings for evictions. The section further provides that urgent proceedings for eviction may be granted if there is danger of injury to anyone if the unlawful occupier is not evicted, if the hardship of the owner when eviction is not granted exceeds the hardship of the unlawful occupier if eviction is granted, or if there is no other adequate remedy.
These sections from the Constitution and the PIE Act are provided to ensure that the law is enforced in a way that is fair and equitable to everyone, while also considering both sides of the parties, the owner and the unlawful occupier. They are intended to ensure justice, even in situations involving the eviction of unlawful occupiers, including exercising the right of equality provided in section 9 of the Constitution in legislation, regardless of status.
- Judicial Interpretation
In South African law, there have been instances where the courts encountered cases of unlawful eviction. These case decisions serve as a foundational tool for the application of the law that governs evictions. They include judgments from different levels of government, but the most presiding are the Constitutional Court decisions.
One of the most presiding cases on eviction law is the Port Elizabeth Municipality v Various Occupiers. It is a landmark case that was decided in the Constitutional Court. In this case, 68 people living in squatter camps on a privately owned property were to be evicted by the Port Elizabeth Municipality. The eviction was filed in the Southeastern Cape Division of the High Court. The issue was whether the eviction could be carried out under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The court considered the provisions of s26(3) of the Constitution, which requires that evictions may be carried out if all relevant circumstances are considered. The requirement of a ‘just and equitable’ eviction order in sections 4 and 5 of the PIE Act was considered constitutionally, inter alia. The court therefore found the eviction unjust and inequitable and dismissed the appeal.
This judgement highlighted the great significance of applying the provision in a constitutional manner and in a manner that is just and equitable. It planted a good foundation on the law that governs evictions and the considerations to be taken when applying the law. It also emphasized the consideration of the rights of the unlawful occupiers.
The Government of the Republic of South Africa and Others v Grootboom and Others also served as a great tool in shaping housing rights in South African law. The court had to decide whether the state’s housing policy must make provision for the immediate need of people in crisis situations. It considered section 26(1) and (2) of the Constitution, which grants people the right to adequate housing and the state’s responsibility to take measures to realise this right. It also considered s28(1)(c) of the Constitution, which outlines the rights of children to basic shelter, and considered the reasonableness of the housing policy. In application of these provisions, the court held that the housing policy was unreasonable and must include reasonable measures, such as providing relief to those with no access to land. The reasonable test and approach taken by the court contributed to the realisation of socio-economic rights.
The case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg also serves as a significant case in eviction law. The court highlighted the requirements of the PIE Act in section 4, and section 26(2) and (3) of the Constitution. It had to decide whether the eviction of occupiers was just and equitable and whether it aligned with s26(2) and (3) of the Constitution, and the obligation of the city to communicate with the occupiers before eviction. This case highlighted the importance of s4 of the PIE Act, which requires a 14-day notice and the eviction to be just and equitable.
The above-mentioned cases highlight the landmark decisions of the court when dealing with unlawful eviction. These cases also provide the rules that must be considered when dealing with such cases. This takes the approach of also considering the rights of the unlawful occupiers and the owner.
- Areas of Inconsistency/ Critical Analysis
The referenced landmark cases, which apply to unlawful evictions, set the standard for the rules to be taken when dealing with such matters. However, there are areas of inconsistency in these court decisions and the provisions which are made for the protection of these rights.
It should be considered for instance, the case of Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal. In this case, there was a conflict between a provincial law and the PIE Act. The court was required to decide whether section 16 of the KwaZulu-Natal Slums Act violated section 26 of the Constitution and the PIE Act. This case highlighted the extent of provincial laws on whether they can override an act of parliament. Even though the Constitutional Court considered the Act invalid as it was inconsistent with s26 of the Constitution, the act still enables for owners to continue with eviction proceedings without considering the requirements of just and equitable.
Even though the Constitutional Court rendered the Slums Act invalid. There are still instances where owners, whether municipalities or not, tend to carry out eviction proceedings without making reasonable notice to the occupiers. The PIE Act itself does not indicate what is meant by effective notice, which must be made by the court on the proceedings of the occupier and the municipalities.
There are several cases where the inconsistencies with the decisions of landmarks cases where found. These include Jaftha v Shoeman, where the case dealt with the risk of eviction without constitutional consideration. The case of Ndlovu v Ngcobo which focused on the standards of periods/length the unlawful occupiers stayed on the land which is governed by s4 of the PIE Act. As well as Theart v Minaar which also deals with the interpretation and application of the PIE Act in magistrate courts.
These cases highlight that as much as there are landmark cases such as the decision in the Port Elizabeth Municipality case, there are other instances where the law is not sufficiently applied the required way. This lack of proper application of the rules and the law, therefore, leads to violations of the rights granted in the Constitution. It includes real cases where people are put in situations of difficulty and trouble because of the failure of municipalities or owners to realise the rights offered to everyone in the Constitution. It is however a matter of fact that it may be troublesome to properly realise the rights of both the owner and the occupier even with the given rules of precedent and legislation. That should be addressed in a manner that was adopted by the previous landmark decisions, and the judiciary should ultimately consistently apply these decisions.
International law also realises these rights of unlawful occupiers and provides provision for the governing of evictions. These are relevant to South African law as the Constitution places an obligation upon the courts inter alia, in s39(1)(b) that, “(1) When interpreting the Bill of Rights, a court, tribunal or forum-… (b) must consider International law…”. Therefore, in corroboration to that, the Universal Declaration of Human Rights in Article 25 provides that everyone has a right to adequate housing. The International Covenant of Economic, Social and Cultural Rights (ICESCR) also provides in article 11(1) for the right to adequate housing. And further provides for forced evictions in General Comment No.7. There are several other international provisions which apply to the rights of housing and lawful evictions.
However, there is a case that serves significance to our law, the SERAC v Nigeria, where it was held that Nigeria violated the rights to housing and dignity when Ogoni people were evicted without any relief methods/solutions. We can therefore conclude that this right is internationally granted and should therefore be realised correctly.
- Way Forward
With reference to the above provided authority, the law must take a stricter approach to evictions to ensure that it is widely known by the people, to avoid instances where the law clashes with conducts of municipalities and owners. The approach used in the cases of Port Elizabeth Municipality, Grootboom and Olivia Road case should be adopted in a manner that will leave no room for doubts and no grey areas in the law that governs evictions. The reasonable test used in the landmark cases should be applied in a stricter manner, and the provincial legislature and any other lawmakers should ensure that no law is made that compromises the rights in the Constitution and the provisions of national legislation. The obligation in s26(3) of the Constitution that, “No legislation may permit arbitrary evictions”, should therefore be carried out and applied to every inconsistency, to avoid such incidental matters as faced in the Abahlali basemjondolo Movement case.
- Conclusion
Conclusively, the legal system has a lot of imperfect areas in eviction law regarding the rules that govern unlawful eviction and the consideration of the rights of the unlawful occupiers and the owners. Even with jurisdictional precedents set in court, the procedure to realise these rights is not a walk in the park. This furtherly supports the view that the law is not only black and white, it has grey areas in between.
BIBLIOGRAPHY
Primary sources
The Constitution of the Republic of South Africa, 1996.
Prevention of Illegal Eviction from and Unlawful Occupation of the Land Act 19 of 1998.
KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act, 2007.
Port Elizabeth Municipality v Various Occupiers.
Government of the Republic of South Africa and Others v Grootboom and Others.
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg.
Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal.
Jaftha v Shoeman.
Ndlovu v Ngcobo.
Theart v Minaar.
Universal Declaration of Human Rights.
International Covenant of Economic, Social and Cultural Rights.
Secondary Sources
SERAC v Nigeria.
