“Home” and Unlawful Occupation: The Horns of Local Government’s Dilemma

• Jurisdiction: South Africa
• Citation: (2015) 26 Stell LR 583
• Author: Richard Cramer
• Published date: 27 May 2019
• Date: 27 May 2019
• Pages: 583-611

583

“HOME” AND UNLAWFUL OCCUPATION: THE

HORNS OF LOCAL GOVERNMENT’S DILEMMA:

FISCHER AND ANOTHER V PERSONS

UNKNOWN 2014 3 SA 291 (WCC)

Richard Cramer

BA (Hons) LLB LLM (UCT)

Teaching and Research Assistant, Faculty of Law, University of Cape Town

Hanri Mostert

BA LLB LLM LLD (Stell)

Professor, Faculty of Law, University of Cape Town

Visiting Professor, Department of Private and Notary Law, Groningen Centre for Law

and Governance, Rijksuniversiteit Groningen*

1 Introduction and issues

The unlawfu l occupation of land leads to problems that of ten require

Solomonic wisdom from our judges. Some have aired t heir frust rations.1

Others have done marvels deal ing with the tension betwee n the rights of

landowners and the need s of marginalised membe rs of society.2 The

judiciary’s role is largely reactive: courts are mostly called up on only once

the actions of those i nvolved have made the situation difcult to resolve. We

think the cou rts cannot be expected to be proac tive in these matters, although

orders requiri ng engagement and supervision may be necessar y and desirable

when socio-economic right s are implicated in the ca ses that are brought

before th em.3 Still, the re sponsibility for grappli ng with housing problems

primarily re sts on the legislative and the executive branches of government.

In particula r, local governments mu st deal effectively with the evils of both

land invasion and homelessness. A specic concern is how local governments

may respond appropriately to prevent (or mini mise the risk of ) land invasion.

Closely linked to this is the q uestion of appropriate relief to unlawfu l occupiers

when local government oversteps the bou nds of its authority and demolishe s

makeshift st ructures servi ng as homes. Those ofcials in municipalit ies who

* The researc h that went into th is contrib ution was fun ded by the Nationa l Research Found ation’s

competitive pr ogramme for rated resea rchers. We would like to thank A nne Pope, Gustav Muller and

the members of t he postgraduat e writing circle at UC T who gave valuable input. O pinions and erro rs are

those of the autho rs and should not be att ributed to the in stitutions or pe rsons mentioned he re.

1 For example Willis J in Emful eni Local Municip ality v Builders Ad vancement Se rvices CC 2010 4 SA 133

(GSJ) with refere nce to Machele v Mailula a nd Philana-Ma-Afr ica v Mailula 2010 2 SA 573 (SCA).

2 See Sachs J in Port Elizab eth Municipality v Vari ous Occupiers 20 05 1 SA 217 (CC). See further AJ van

der Walt Propert y in the Margins (200 9) 133-167 and S Liebenberg Socio-Economic Rights: Adjudication

under a Transform ative Constitu tion (2010) 26 8-316.

3 Concerning supervision, Liebenberg Socio-Economic Rights 424-438. Conc erning en gagement, see L

Chenwi “A New Approach to Re medies in Socioeconom ic Rights Adjudication: O ccupiers of 51 Olivia

Road and Other s v City of Johannesb urg and Others” (20 09) 2 CCR 371 377-387; Occupiers of 51 Olivia

Road, Berea Townsh ip and 197 Main Street Johann esburg v City of Johan nesburg 2008 3 SA 208 (CC);

Port Elizabeth M unicipality v Variou s Occupiers 2005 1 SA 217 (CC) paras 39- 47.

(2015) 26 Stell LR 583

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have to make the decisions about whether to enter tain unlawful occupat ion of

land nd the mselves on the horns of a dilem ma here: if the state does not hing

to combat land invasion, the public order – and wit h it the rule of law – is

jeopardised,4 but the same happens i f the state reacts to o quickly, and not

effectively enough, and without a cour t order. Letting thi ngs lie, however,

begets a whole different set of problems, as the example in Pre sident of the

Republic of South Africa v Modde rklip Boerdery ( Pt y) Ltd (“Modderklip”)5

so aptly illustrated.6 It cannot be appropr iate to allow an unlawf ul situation,

such as a land invasion, to escalate beyond cont rol (as it did in Modderklip),

by allowing legislation that should protect the i nterests of unlawful occupants

and landowners to cultivate ine rtia on the part of the only authorit y capable of

resolving the matter, that is t he local government.

It seems as if municipalities’ options of respon se are constrict ed: they can

attempt to stop people busy with i nvading land, by removi ng them from it

at the risk of being ordered to rei nstate these un lawful occupiers u ntil an

eviction order is grante d; or they can choose not to respond to la nd invasion

immediately, and wait for an eviction order, thereby contr ibuting to massive

transgressions of the public order. Either way, they will not be complying w ith

their duties under the r ule of law. It would be benecial for municipalities

to know when they may act to prevent a land i nvasion, without incurr ing

unnecessar y costs to the public purse.

Fact is, our highest court expects municipalities to full a mediating role,7

engaging mean ingfully8 with those involved, and not to “seek to cur ry favour

with or bend to the demand s of individuals or commun ities, whether rich or

poo r,” 9 because they have to act in accor dance with the broader i nterests of

all who fall within their area of control. Key to fullling the se duties is the

Prevention of Illegal Eviction and Unlawful Oc cupation of Land Act 19 of

1998 (“PIE”). The act gives effect to section 26(3) of the Constitution of the

Republic of South Africa, 1996 (the “Constitution”), which states t hat one

may not be evicted from a home without a cour t order, made after considering

all relevant circumstances.10 Noting in its preamble that no one may be

evicted from a home without a cour t order, the Act seeks to prevent unlawful

evictions and sets out procedu res that must be followed in order to att ain an

eviction order. A critical matter of i nterpretation wit h regard to PIE is what

kinds of actions would constit ute eviction from a home and what k inds of

structu res would qualify as homes.

4 President of the Repu blic of South Africa v M odderklip Boerde ry (Pty) L td 2005 5 SA 3 (CC) para 44.

5 2005 5 SA 3 (CC).

6 In Modderklip, the Benoni City Council t ook no steps to re move people unlawf ully occupy ing a farm. Th e

private compa ny who owned the land s ought and was gra nted an eviction or der. The sheriff , however, did

not comply with the o rder as she required t he assistance of a priva te security compa ny in order to carr y

out the eviction . This requi red a deposit of R1.8 milli on from Modderk lip, which it could not af ford to pay.

During t his time, the numb er of unlawful oc cupiers grew to arou nd 40 000 people.

7 Port Elizabeth Munici pality v Various Occu piers 2005 1 SA 217 (CC) paras 39-47.

8 Occupiers of 51 Olivia Road , Berea Township and 197 Main St reet Johannesb urg v City of Johann esburg

2008 3 SA 208 (CC) para 18.

9 Port Elizabeth Munici pality v Various Occu piers 2005 1 SA 217 (CC) para 26.

10 For an overview of u nlawful occu pation and evictio n in South Afric a, see ch 10 of J Pienaar Land Reform

(2014).

584 STELL LR 2015 3

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