Eviction Application under Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE); Whether eviction “just and equitable” considering relevant circumstances; Whether alternative land has or can be made available; Negative and positive obligations with respect to the right to housing; Relation between property rights and the right to housing of the landless.
Port Elizabeth Municipality filed an eviction application in response to a neighbourhood petition against 68 adults and children occupying shacks erected on privately owned land. They had been living on this undeveloped land for between two to eight years and were willing to vacate the property subject to reasonable notice and suitable alternative land. The legislation required that before granting an eviction order, the courts must be of the opinion “that it is just and equitable to do so” after considering all the relevant circumstances and where occupants have been there more than six months, whether land has or can be made available for relocation.
The Municipality had embarked on a comprehensive housing development programme. Relying on the Constitutional Court’s decision in Grootboom, it argued that if it were obliged to provide alternative land, the Court would effectively be requiring preferential treatment to this particular group of occupiers,. The High Court granted the eviction order, but on appeal, the Supreme Court of Appeal (SCA) held that the eviction order should not be granted without an assurance that the occupiers would have some measure of security of tenure. On appeal to the Constitutional Court, the Court held that, considering the lengthy period during which the occupiers have lived on the land, the fact that eviction is not necessary for the land to be put to productive use, the Municipality’s failure to consider the problems of this particular group of occupiers, and the fact that this is a relatively small group of people who appear to be genuinely homeless and in need, it is not “just and equitable” to order the eviction. The Court found that the State has a constitutional responsibility to satisfy both property rights (section 25) and housing rights (section 26 and that solutions to difficult problems must be found on a case by case basis, considering all relevant circumstances, including the manner in which the occupation was effected, its duration and the availability of suitable alternative accommodation or land.
Keywords: Port Elizabeth Municipality v. Various Occupiers 2004 (12) BCLR 1268, Land, Rights, Natural, Resources
This case has provided advocates in South Africa and elsewhere with a basic defense against eviction from private property where no alternative accommodation is available. It establishes that homeless people who have occupied land have to be negotiated with as people who have rights. The decision limited the extent to which governments can argue, on the basis of the Grootboom “reasonableness” test, that as long as they have a reasonable housing policy, the needs of particular groups facing eviction can be ignored.
While holding that there is no unqualified constitutional duty on governments to provide alternative accommodation or land in any eviction, the finding that courts should be “reluctant” to grant evictions against relatively settled occupiers unless a reasonable alternative is available is a significant development in right to housing jurisprudence. The application of this principle to eviction from private land is of major importance, as well as the requirement that the government engage meaningfully with the affected group of occupiers.
F.W.A. Scott and Wf. Jurgens instructed by Port Elizabeth Justice Centre. Port Elizabeth Justice Centre: 041-4842724/4873388;.
041-4873335/4844992. Potchefstroom I (Vereeniging) Legal Clinic: 016-4213527;.
016-4214287. This centre is one of the largest legal aid/justice centres in South Africa.
