Does Method Really Matter? Reconsidering the Role of Common-Law Remedies in the Eviction Paradigm
| Jurisdiction | South Africa |
| Date | 16 August 2019 |
| Published date | 16 August 2019 |
| Pages | 72-98 |
| Citation | (2014) 25 Stell LR 72 |
| Author | Zsa-Zsa Temmers Boggenpoel |
72
does method reallY matter?
reconsidering the role oF common-
laW remedies in the eviction paradigm
Zsa-Zsa Temmers Boggenpoel
BComm LLB LLD
Senior Lecturer in Private Law, University of Stellenbosch*
1 Introduction
The new constitutional d ispensation brought with it (inevitably) large scale
deviations in the way remedies i n the context of evictions are applied in moder n
South African law. The problem that is par ticularly interesting – especially in
light of recent jurispr udence – is the extent, if any, to which remedies ar e
applied in the same way as they were before the Const itution of the Republic of
South Africa, 1996 (“the Const itution”) was enacted, e specially in insta nces
where constitutional r ights are infringed and a n appropriate remedy is sought.
The question th at seems to have become relevant is whether there is – or
should be – a methodological approach in dete rmining t he decision of which
remedy to apply for to ensure that constitutional r ights are adequately given
effect to. This has become esp ecially important in instanc es where more than
one remedy deriving f rom different sources of law could apply in a particular
case. Are litigants the n free to choose common-law remed ies in instance s
where (constitutional) rights are i nfringed, and in response to t hat, are court s
able to deny those remedies and rathe r create constitut ional ones instead?
It has always been crucial to consider t he place (or role) of common-law
remedies in a constit utional dispute. Additionally, it has become essent ial to
determine t he possibility of direct reliance on a constit utional right (to create a
remedy) in applications brought purely on the basis of common -law remedies.
One place whe re the questions raised above are particula rly interest ing
is in the area of eviction law. The Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (“PIE”) was enacted to give
effect to the constitut ional right not to be arbitrarily evicted f rom one’s home.1
The Act ensur es that procedural requi rements are met in the case of eviction
of unlawf ul occupie rs.2 PIE also gua rantees substant ive safeguards over and
* I would like to tha nk André van d er Walt and Juanita Pie naar for readi ng drafts of thi s article Rema ining
errors ar e my own
1 See JM Piena ar & A Muller “The I mpact of the Pre vention of Illegal Ev iction from and Un lawful
Occupation of La nd Act 19 of 1998 on Homelessness a nd Unlawful Oc cupation wit hin the Pres ent
Statutor y Framework” (1999) 10 Stell LR 370-396, which h ighlights that although PIE a dequately
addresse s the prevention of the i llegal eviction i n terms of s 26(3), it doe s not fulfil it s purpose of en suring
the prevention of u nlawful oc cupation of land a nd homelessness See also JM P ienaar & H Moste rt
“Uitsetti ngs onder die Suid-Afr ikaanse Grondwe t: Die Verhouding tussen a rtikel 25(1), artikel 26(3) en
die Uitsetti ngswet” (2006) TSAR 277 283, where t he authors question the role and function of the Act
They consider t he purpose of the Act i n terms of the aim s as set out in the Act itself , but also with regard
to various ca ses that have tried t o provide clarity i n terms of the main pu rposes of the Act
2 AJ van der Walt Prope rty in the Margin s (2009) 148
(2014) 25 Stell LR 72
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above the procedural controls.3 Unfor tunately, what has been on the inc rease
lately is municipalities evicting (or attempt ing to evict) unlawful oc cupiers
without following the procedures a s set out in PIE. This was not at all an
uncommon occur rence in the pre- constitutional er a, where “the tendency by
the municipalities of the time wa s to deliberately destroy the building mat erials
so as to prevent the use of the mandament van spolie in the se instances”.4
One would have thought that evictions of this nat ure would become a thing
of the past under the constit utional dispensat ion, especially given section
26(3) of the Constitution and PIE.5 However, what has surfaced lately are
large scale suspect evictions ef fected by mun icipalities without the necessary
procedures having been followed. My specic concern in these instances is
the possible remedies that may be tr iggered (and available to evictees) when
an infri ngement of this nature occurs.
In an earlier publication, Piena ar and I highlighted the continued relevance
of the common-law remedy of the mandament van spolie in evict ion cases.6
We specically noted how ironic it was that we still see common-law remedies
being resorted to i n order to highlight the pr edicament of the homeless and
vulnerable, despite sect ion 26(3) of the Constitution and the fact t hat PIE was
specically enacted to give effect to the right not to be arbitrarily evicted from
your home.7 Our rst conclusion was that it i s clear from pre-constitutional
jurisprude nce that the spoliation remedy was reg ularly used following
evictions to restore posses sion and effectively return people to t heir homes
and shelters. However, where the building materials w ith which the homes
were e rected were destroyed, the applicants someti mes ran into difculties
with the applicability of the remedy. Nonetheless, to a large extent iss ues
like homelessness and vul nerability were brought to t he fore when courts
3 See Van der Walt Propert y in the Margins 149, who stat es that “[t]he su bstantive req uirements id entify
the social and p olitical backgrou nd of the housing short age and the social and p ersonal circum stances of
the occupiers a s factors that have t o be considered before a n eviction order is gr anted, thereby i ndicating
that the Act brings about a significant qualification for the rights paradigm” See also JM Pienaar Land
Reform (2013) ch 10 (forthcoming)
4 ZT Boggenpo el & JM Pien aar “The Co ntinued Relevanc e of the mandament van spolie: Recent
Developments rela ting to Disposse ssion and Eviction” (2013) De Jure 998 1012:
“The 1977 Amend ment to PISA fur ther stren gthened the p osition of local aut horities, in t hat it
precluded clai mants from ap plying for civil re medies in res ponse to demolit ions of buildin gs or
struct ures or the remova l of materials or con tents from the st ructur es, unless the cl aimants could p rove
lawful title o r a right to the land Th is severely limited th e courts’ power to gra nt the mandament va n
spolie in favour of un lawful occupie rs whose proper ties were seiz ed upon and dest royed It is thus cle ar
that t he link between d ispossession and evict ion and s ubsequent p ossessory remedies a nd statut ory
responses t hereto has been pa rt-and-parce l of the South-Africa n landscape for many ye ars ”
5 The Prevention of Illegal Squa tting Amendmen t Act 72 of 1977 (“PISA”) Bleche r w rites that this
legislative int ervention was a “swift a nd harsh” intervention by t he legislative authorit y in response to
Frederick s v Stellenbosch Divisi onal Council 1977 3 SA 113 (K) See MD Blecher “Spoliatio n and the
Demolition of Lega l Rights” (1978) 95 SALJ 8 13 In t his regard, the tende ncy by the municipalitie s of
the time was t o deliberately destroy the bu ilding materials so as t o prevent the use of the mandament
van spolie in these instanc es The 1977 Am endment to PISA (s 3B(4)(a)) further st rengthen ed the
position of local aut horities, in t hat it precluded claim ants from applyi ng for civil remedie s in response to
demolitions of bu ildings or struc tures or the remov al of materials or cont ents from the str uctures, un less
the claimant s could prove lawful title or a r ight to the land This severely lim ited the courts’ power to
grant the mandament van spolie in favour of unl awful occupiers wh ose properties wer e seized upon and
destroyed
6 Boggenpoel & Pien aar (2013) De Jure 998-1021
7 998-10 21
DOES METHOD REALLY MATTER? 73
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