Abstract:
After 25 years of democracy, landlessness remains a major problem in South Africa,
as millions of people still do not have access to adequate housing. This inevitably
causes persons, who act either out of necessity or, sometimes, for more questionable
reasons (such as to make political statements), to occupy the land of others (see, for instance, https://ewn.co.za/Topic/Illegal-land-invasions (28-08-2019)). Despite
the desperate plight of these persons, and the motivations behind these intrusions,
the law cannot (and does not) condone such conduct (s 3 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998). If land
occupations are not properly addressed, they hold several dangers. These include
undermining the rule of law (s 1(c) of the Constitution of the Republic of South
Africa, 1996) through subverting public order (Cramer and Mostert “‘Home’ and
unlawful occupation: the horns of local government’s dilemma: Fischer v Persons
Unknown 2014 3 SA 291 (WCC)” 2013 Stell LR 583 584; President of the Republic
of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC) par 45),
infringing the right of landowners against arbitrary deprivation of their property
(s 25(1) of the constitution), and (perhaps most pertinently) frustrating the state’s
legitimate efforts to provide housing on a planned basis under section 26(1) of the
constitution (Government of the Republic of South Africa v Grootboom 2001 1 SA
46 (CC) par 92). The question is therefore how best to prevent – and discourage –
these occupations.
Description:
The authors co-presented this contribution as a paper at the Private Law and Social Justice Conference, held at Nelson Mandela University, Port Elizabeth, 19-20 August 2019.