A systemically correct approach in state evictions

• Jurisdiction: South Africa
• Citation: (2020) 31 Stell LR 201
• Author: Viljoen, S.
• Pages: 201-225
• Published date: 12 October 2020
• Date: 12 October 2020

201

A SYSTEMICALLY CORRECT APPROACH IN

STATE EVICTIONS

Sue-Mari Viljoen

BComm (Law) LLB LLD

Associate Professor, University of the Western Cape, Department of Private Law

Abstract

Evictions at the hand of the state have been litigated and adjudicated with

reference to section 26(3) of the Constitution of the Republic of South Africa

(“Constitution”) and section 6 of the Prevention of Illegal Eviction from and

Unlawful Occupation of Land Act 19 of 1998 (“PIE”); administrative law

principles have not featured to determine the substantive fairness of such

decisions. It is argued that the courts’ methodological approach in these

cases has been systemically incoherent. The application of administrative

law principles can arguably complement this area of law if proportionality is

incorporated as the requisite standard for reasonableness. A proportionality

analysis not only requires a delicate balance between the eviction of

unlawful occupiers and the objective of the state’s action, but also a clear

understanding of the impact of such an order. From a methodological

perspective, it is argued on the basis of the rst subsidiary principle that

a) administrative law should nd application in evictions at the hand of the

state; b) the courts are required to rst interpret legislation that has been

enacted to give effect to constitutional rights to establish whether an eviction

order should be granted or not; and c) the proportionality requirement in

terms of administrative law should bring the human factor to the forefront of

a substantive fairness enquiry in the context of state evictions.

Keywords

Evictions law, housing law, administrative law, subsidiarity

1 Introduction

The legal framework that regulates evictions at the hand of the state – and

specically the substantive fairness of such decisions – consists of two

distinct, though overlapping, bodies of law. The rst area of law is located

in section 26(3) of the Constitution of the Republic of South Africa, 1996

(“Constitution”) and section 6 of the Prevention of Illegal Eviction from and

Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which was specically

enacted to regulate evictions. The second area of law that is applicable

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(2020) 31 Stell LR 201

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202 STELL LR 2020 2

when the state decides to evict unlawful occupiers is administrative law.

Administrative justice is guaranteed in section 33 of the Constitution and

section 6(2)(h) of the Promotion of Administrative Justice Act 3 of 2000

(“PAJA”) guarantees the reasonableness of all administrative decisions,

including the administrative decision to evict unlawful occupiers. In terms

of the case law, evictions at the hand of the state have been litigated and

adjudicated with reference to section 26(3) of the Constitution and section 6

of PIE, however, administrative law principles have not featured to

determine the substantive fairness of such decisions. Overall, the courts’

methodological approach in these cases has been systemically incoherent.

The case discussion1 undertaken in this article will show that it also remains

unclear on what basis the courts decide against or for evictions as an array

of circumstances can be taken into consideration to determine whether an

eviction order would be just and equitable and any given weight can be

attached to any of such circumstances. The courts are also not required to

take account of the real-life impact of such orders – the human factor of a

state eviction can fall by the wayside of the range of considerations that are

taken into account. In terms of the regulatory framework (section 26(3) of

the Constitution and section 6 of PIE), the courts are not required to consider

the real-life impact of an eviction order.

The application of administrative law principles, and specically the

reasonableness requirement, can arguably complement this area of law if

proportionality is incorporated as the requisite standard for reasonableness.

A proportionality analysis not only requires a delicate balance between the

eviction of unlawful occupiers (the measure that the state has chosen) and the

objective of the state’s action, but also a clear understanding of the impact of

such an order – the human factor is therefore critical in the determination. From

a methodological perspective, it is argued on the basis of the rst subsidiary

principle that a) administrative law should nd application in evictions at the

hand of the state; b) the courts are required to rst interpret legislation that

gives effect to constitutional rights to establish whether an eviction order

should be granted or not; and c) the proportionality requirement in terms of

administrative law requires that a court must bring the human factor to the

forefront of a substantive fairness enquiry in the context of such evictions.

1 The case discussion is focussed on ground-breaking state eviction cases that have collectively

set the tone for the way in which state evictions should be conducted. The discussion is limited

to evictions at the hand of the state because the regulatory requirements in terms of PIE differ

depending on who the evictor is.

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