Port Elizabeth Municipality v Various Occupiers

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 01 October 2004
• Docket Number: CCT 53/03
• Hearing Date: 04 March 2004
• Counsel: A Beyleveld and R B Laher for the applicant. P W A Scott and W Jurgens for the respondents.
• Court: Constitutional Court

Sachs J:

[1] The applicant in this matter is the Port Elizabeth Municipality (the municipality). The respondents are some 68 people, including 23 children, who occupy 29 shacks they have erected on privately owned land (the property) within the municipality. F Responding to a petition signed by 1 600 people in the neighbourhood, including the owners of the property, the municipality sought an eviction order against the occupiers in the South Eastern Cape Local Division of the High Court (High Court). G

[2] At the time that the proceedings were instituted, the occupiers had, on their version, been living for periods ranging from two to eight years on the property. Most had come there after being evicted from other land. The sites they occupied were on undeveloped land in an area known as Lorraine within the jurisdiction of the municipality. The property is zoned for residential purposes and the dwellings were erected without the consent of the H municipality. [1] The occupiers indicated they were willing to leave the property if they were given reasonable notice and provided with suitable alternative land on to which they could move. They were told they could move to a place referred to as Walmer Township (Walmer). They rejected this proposal saying that Walmer was crime-ridden and unsavoury, as well as overcrowded, and I that, in any event, they feared they would have no security of occupation there and J

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find themselves liable to yet further eviction. It was common cause that the occupiers had not applied to the municipality A for housing.

[3] The municipality submitted that it was aware of its obligation to provide housing and had, for that reason, embarked on a comprehensive housing development programme. It contended that, if alternative land was made available to the occupiers, they would effectively be 'queue-jumping'; by occupying private land and, when B asked to vacate it, demanding that they be provided with alternative accommodation, they would be disrupting the housing programme and forcing the municipality to grant them preferential treatment.

[4] The High Court held that the occupiers were unlawfully occupying the property and that it was in the public interest that C their unlawful occupation be terminated. It said that, taking all the relevant statutory considerations into account, it could not come to the conclusion that the relief sought should not be granted. The Court accordingly ordered the occupiers to vacate the land and authorised the Sheriff to demolish the structures, if necessary, with D the assistance of the police, if required. It also ordered the occupiers to pay the costs of the proceedings.

[5] The occupiers took the matter on appeal to the Supreme Court of Appeal (SCA). The SCA held that the occupiers were not seeking preferential treatment in the sense that they were asking for housing to be made available to them in preference to people in the housing E queue. They were merely requesting that land be identified where they could put up their shacks and where they would have some measure of security of tenure. The SCA held further that the important consideration in the present case was the availability of suitable alternative land. This was so because of the length of time that the F occupiers had occupied the land, and, more importantly, because the eviction order was not sought by the owners of the property but by an organ of State on the owners' behalf. The SCA held that, given that, on the papers, it was unclear whether Walmer was land owned by the municipality or was privately owned, the High Court should not have G granted the order sought without assurance that the occupiers would have some measure of security of tenure at Walmer. It accordingly upheld the appeal and set aside the eviction order.

[6] The municipality now applies to this Court for leave to appeal against the decision of the SCA and to have the eviction order H restored. It has indicated that it is particularly concerned to get a ruling from this Court that, when it seeks eviction of unlawful occupiers, it is not constitutionally bound to provide alternative accommodation or land. I

[7] In opposing the application, the occupiers contended that, in essence, it was based on a challenge to findings of fact made by the SCA and did not raise any constitutional matters. This argument must be rejected. The whole case turns on the interpretation to be given to various provisions in the Constitution, as well as to the statute adopted to give effect to a provision of the Constitution. J

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I The constitutional and statutory context A

The Prevention of Illegal Squatting Act 52 of 1951

[8] In the pre-democratic era, the response of the law to a situation like the present would have been simple and drastic. [2] In terms of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), the only question for decision would have been whether the occupation of the land was unlawful. Once B it was determined that the occupiers had no permission to be on the land, they not only faced summary eviction, they were liable for criminal prosecution. Expulsion from land of people referred to as squatters was, accordingly, accomplished through the criminal and not the civil courts, and as a matter of public rather than of private law. The process was deliberately made as swift as possible: Conviction followed by eviction. Thus, even if they had been born on the land and C spent their whole lives there, persons from whom permission to remain on land had been withdrawn by new owners were treated as criminals and subjected to summary eviction. [3]

[9] PISA was an integral part of a cluster of statutes that gave a legal/administrative imprimatur to the usurpation and D forced removal of black people from land and compelled them to live in racially designated locations. For all black people, and for Africans in particular, dispossession was nine-tenths of the law. [4] Residential segregation was the cornerstone of the apartheid policy. This policy was aimed at creating separate 'countries' for Africans within South Africa. Africans were E precluded from owning and occupying land outside the areas reserved for them by these statutes. The Native Urban Areas Consolidation Act 25 of 1945 was premised on the notion of Africans living in rural reserves and coming to the towns only as migrant workers on temporary sojourn. Through a combination of spatial apartheid, permit systems and the F creation of criminal offences, the Act strictly controlled the limited rights that Africans had to reside in urban areas. People living outside of what were defined as native locations were regarded as squatters and, under PISA, were expelled from the land on which they lived. G

[10] Differentiation on the basis of race was, accordingly, not only a source of grave assaults on the dignity of black people. It resulted in the creation of large, well-established and affluent white urban areas co-existing, side by side, with crammed pockets of impoverished and insecure black ones. [5] The principles of ownership in the Roman-Dutch H

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law then gave legitimation in an apparently neutral and impartial way to the A consequences of manifestly racist and partial laws and policies. In this setting of State-induced inequality, the nominally race-free PISA targeted black shack-dwellers with dramatically harsh effect. As Van der Walt has pointed out:

'The ''normality'' assumption that the owner was entitled to possession unless the occupier could raise and prove a valid defence, B usually based on agreement with the owner, formed part of Roman-Dutch law and was deemed unexceptional in early South African law, and it still forms the point of departure in private law. However, it had disastrous results for non-owners under apartheid law: the strong position of ownership and the (legislatively intensified) weak position of black non-ownership rights of occupation made it easier for the C architects of apartheid to effect the evictions and removals required to establish the separation of land holdings along race lines.' [6]

PISA, accordingly, gave the universal social phenomenon of urbanisation [7] an intensely racialised South African character. Everywhere, the landless poor flocked to urban areas in search of a better life. This population shift was both a D consequence of and a threat to the policy of racial segregation. PISA was to prevent and control what was referred to as squatting on public or private land by criminalising it and providing for a simplified eviction process. [8] The power to enforce politically E

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motivated, legislatively sanctioned and State-sponsored eviction and forced removals became a cornerstone of apartheid land A law. [9] This marked a major shift, both quantitatively and qualitatively (politically). Evictions could be sought by local government and achieved by use of criminal rather than civil law. [10] It was against this background, and to deal with these injustices, that s 26(3) of the Constitution was adopted and new statutory arrangements made. B

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)

[11] The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was adopted with the manifest objective of C overcoming the above abuses and ensuring that evictions, in future, took place in a manner consistent with the values of the new constitutional dispensation. Its provisions have to be interpreted against this background. D

[12] PIE not only repealed PISA but, in a sense, inverted it: Squatting was decriminalised and the eviction process was made subject to a number of requirements, some necessary to comply with certain demands of the Bill of Rights. The overlay between public and private...