In the pre-constitutional dispensation, the court could grant an eviction order without considering the risk of homelessness to the evictees. This was possible because there was no constitutional right of access to adequate housing, and there was no law obligating the government to provide alternative accommodation to vulnerable evictees. In this context, the common law right to evict unlawful occupiers was absolute and it trumped all the interests of the unlawful occupiers. Notably, this legal framework was pre-dominantly in favour of the landowners, and undermined and weakened the vulnerable evictees’ housing rights.

In the new constitutional dispensation, there has been a shift away from the pre-constitutional dispensation’s legal framework. The eviction landscape has been transformed by s 26 of the Constitution, which gives all citizens the right of access to adequate housing and the right not to be arbitrarily evicted. Section 26 further obliges the State to take all reasonable steps to realise the right of access to adequate housing. The subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and the Extension of Security of Tenure Act 62 of 1997 gives effect to s 26 of the Constitution. Accordingly, evictions are now qualified in terms of s 26 of the Constitution.

In a situation where unlawful occupiers have no prospect of finding alternative accommodation of their own, the court may order the local government to provide them with temporary alternative accommodation. Therefore, in the new constitutional dispensation the government has the constitutional duty to provide alternative accommodation to the vulnerable evictee (see Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC); and Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC)). Notably, government has a central legitimate interest in evictions. To the extent that the government cannot provide alternative accommodation, the court may refuse to grant eviction or suspend it until the government makes such provision. This new development aims to infuse the principle of justice and equity in South African eviction law by balancing and reconciling the landowners’ interests with those of the occupiers.

However, this transformative development has been hindered by the government’s failure to play its central role. In the sense that if government fails to provide alternative accommodation or provides inadequate forms of alternative accommodation the eviction will be refused or delayed. As the result, the landowner’s property rights and the unlawful occupiers’ housing rights are compromised. Ultimately, the courts’ balancing approach will be hampered. Therefore, this article deals with the government’s failure to play its central role in evictions. As such, balancing the landowners and the unlawful occupiers’ opposed interests in the context of eviction is a complex exercise. This article concludes that it is impossible to balance the subject rights without meaningful involvement of government.

There is no doubt that unlawful occupation results in the conflict of the unlawful occupiers’ housing rights with the landowner’s property rights. However, balancing these opposed interests is a complex judicial exercise. When confronted with this issue in Port Elizabeth Municipality case, Sachs J held at para 23 that ‘judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case’.

One of the major factors in determining eviction is the provision of temporary emergency accommodation or alternative accommodation to the unlawful occupiers. It is well-established in South African law that until this duty is fulfilled by the municipality that has jurisdiction, it is difficult for the court to grant an eviction. However, there are so many issues associated with the provision of temporary emergency accommodations, especially in the City of Johannesburg where the Blue Moonlight precedent was set. (In the Blue Moonlight judgment, the Constitutional Court (CC) was asked to decide whether the City of Johannesburg had the duty to provide temporary emergency accommodation to the occupiers. The CC held that municipalities are constitutionally obliged to provide temporary emergency accommodation to the unlawful occupiers facing the risk of homelessness. Thus, the City of Johannesburg was ordered to develop new policies and structured programmes to give effect to the provision of temporary emergency accommodation). This seriously affects the landowners who cannot effectively evict nor regain possession of their properties if the municipality fails to provide temporary emergency accommodation to the evictees. The case of Hlophe and Others v City of Johannesburg and Others 2013 (4) SA 212 (GSJ) is the classical example of where the City of Johannesburg failed to provide temporary emergency accommodation to the unlawful occupiers for almost four years after the eviction order was granted.

It is clear, therefore, that if the municipalities fail to provide temporary emergency accommodation to the evictees, the landowners’ property rights would continuously be compromised and the court’s balancing approach will ultimately be hampered. Thus, one can argue that South African eviction laws and the current court’s approach to evictions overprotects unlawful occupiers at the expense of the landowners’ property rights. This is because the law allows the unlawful occupiers to remain in occupation of the landowner’s property, sometimes indefinitely, until the municipality has provided temporary emergency accommodation to the evictees. This means that the landowner must continue shouldering the State’s obligation until such time that temporary emergency accommodation is made available.

To a certain extent the failure on the part of the State to fulfil its constitutional obligation to provide temporary emergency accommodation amounts to the simultaneous breaches of the State’s s 25(1) obligation towards the landowners and the right to provide alternative housing to the evictees in terms of s 26 of the Constitution. Therefore, the State’s unreasonable failure to give effect to the obligation to provide, at least, basic temporary alternative shelter for unlawful occupiers who face homelessness, constitutes a breach of constitutional rights. André Walters argues that refusing eviction on the basis that the municipality is unable to provide alternative accommodation undermines the landowner’s property rights. As a result Walters argues that the scale of justice and the scale of equality imposed by the South African eviction law is predominantly in favour of the unlawful occupiers (André Walters ‘A balancing act between owners and occupants – is PIE unconstitutional?’ 2013 (July) DR 22).

Walters bases his argument on: ‘A society based on freedom should also include the freedom of a property owner to deal with his or her hard-earned property as he or she pleases for his or her benefit to the exclusion of others’. Jackie Dugard in ‘Beyond Blue Moonlight: The Implications of Judicial Avoidance in Relation to the Provision of Alternative Housing’ (2014) 5 Constitutional Court Review 265 also acknowledges that the municipalities’ failure to play their central role in evictions hampers the balancing process of the landowners’ right to evict, with the unlawful occupiers’ housing right. However, Dugard levels her criticism against the court’s weak enforcement mechanism to compel the municipalities to meaningfully discharge their constitutional obligation to provide temporary emergency accommodations. Dugard argues that the failure to provide temporary emergency accommodation by municipalities has been ‘aided and abetted by the CC’s disposition toward judicial avoidance in socio-economic cases’.

Dugard also argues that the municipalities’ non-compliance with the court orders, which direct them to provide temporary emergency accommodation is a big frustration to property owners. Dugard further questions whether it is not the right time for the CC and other courts to adopt a new approach to cure the municipalities’ delays to provide temporary emergency accommodation to evictees. Lowesa Antoinette Stuurman (Illegal eviction and unlawful occupation of land: A comparative perspective (LLM thesis, North-West University 2002)) does not necessarily criticise the courts as Dugard does, neither does she criticise the municipalities for failing to play their central role in eviction. Stuurman’s criticism is levelled against PIE itself. Stuurman argues that the lack of balance between the right to evict and the right to housing was created by PIE. She further argues that PIE over-remedied Apartheid’s legal framework for eviction in that the legislature did not fully consider the impact of PIE on the ownership right as protected by s 25(1) of the Constitution. She argues that PIE lacks proper balance between the right of the unlawful occupiers and the rights of the landowners.

What these scholars underscore is that there is a big gap in our constitutional-property law, which allows the violation of the landowners’ property rights. However, I am not inclined to accept Stuurman’s argument as her criticism levelled against PIE fails on the basis that when the court fails to protect the ownership rights or over-protects the unlawful occupiers’ rights, whatever the case may be, it is not because PIE lacks proper balance but an independent court that fails to correctly apply the Act. On the contrary, I am inclined to accept that the lack of balance between the two subject rights is caused by the municipalities’ unwillingness and reluctance to provide temporary emergency accommodation to evictees.

It is clear that eviction cannot be granted without the meaningful involvement of the State. The big question is how to remedy the municipalities’ failure to play their central role in evictions and to ultimately bring the proper balance of the landowner’s right to evict with the unlawful occupiers right of access to adequate housing. It appears that constitutional damages and a mandamus are the best remedies in the circumstances. The court should not hesitate to award constitutional damages as a way of discouraging the State’s continuous failure to fulfil its constitutional obligation. It is not fair that the landowner has to wait for an indefinite period before the State accommodates unlawful occupiers elsewhere while shouldering the housing responsibility of the State without being compensated.

In situations where the municipality is unable to find alternative land to build temporary emergency accommodations municipalities must be ordered to pay each evictee a rental fee in order to secure alternative accommodation elsewhere. This should happen where the municipality does not have available temporary emergency accommodation, therefore, in order to give the landowner’s access to their property while the municipality is preparing temporary emergency accommodation elsewhere, which could take long, the municipality must find ways to assist the unlawful occupiers to rent accommodation elsewhere while waiting to be provided with temporary emergency accommodation. This will help the landowners to regain access to their properties speedily as opposed to waiting indefinitely while waiting for the municipality to secure temporary emergency accommodation elsewhere.

In this way, landowners will be able to regain possession and exclusive use of their private property, and at the same time unlawful occupiers will be resettled as required by s 26 of the Constitution in an orderly manner. The court enjoys a wide discretion to award constitutional damages – where the State has violated the constitutional rights of its citizens – especially where circumstances make it appropriate particularly in cases of glaring and continuous State failure to adhere to its constitutional obligation. Although the remedy of constitutional damages is not new in South African law, it is, however, not properly implemented in the eviction law or constitutional property law jurisprudence. In the context of eviction, constitutional damages will be a rectifying mechanism in circumstances where the municipality has violated the constitutional rights of both landowners and unlawful occupiers.

A mandamus is an order of court directing a party to do something or to refrain from doing something. A municipality is a juristic person, which operates through its functionaries. Just like a company, the directors are expected to demonstrate the highest standard of care in the company they owe fiduciary duty to. Directors are personally responsible for the management of the affairs of the company. The same applies to the municipal functionaries as they are responsible for ensuring that the municipality complies with eviction orders directing them to provide temporary emergency accommodation to evictees. What makes a mandamus a strong enforcement mechanism is that if the functionaries fail to act, as per the court order, they could be held in contempt and face imprisonment. It is now the time to hold the municipal functionaries personally responsible in situations where the municipalities fail or unreasonably delay to provide temporary emergency accommodation to evictees. Therefore, I recommend that a mandamus should be immediately issued by the courts where there is failure by the municipality to provide temporary emergency accommodations to evictees.

Sithelo Magagula LLM (UKZN) is a legal practitioner in Johannesburg.

This article was first published in De Rebus in 2020 (Aug) DR 47.