Evictions in our country are a contentious issue, which are largely exacerbated by socio-economic and political discrepancies. After more than 30 years of democracy, the state has failed and/or neglected to achieve a dignified existence for all its citizens, with many still lacking access to adequate housing.
Despite efforts by the state to provide adequate housing, in 2023, the National Housing Needs Register recorded a backlog of over 2,4 million households that need access to adequate housing (Habitat for Humanity South Africa ‘The effects of housing poverty in South Africa’ (https://habitat.org.za, accessed 2-2-2025)).
The right to have access to adequate housing is preserved in s 26 of the Constitution, which states that:
‘(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.’
Section 26 is an example of our Constitution’s progressive vision because it prohibits arbitrary evictions and guarantees access to adequate housing.
The prohibition against arbitrary evictions was given effect through the enactment of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). Therefore, all evictions from buildings or structures utilised for dwelling purposes, as well as evictions from such land are regulated by the PIE Act, with the exception of those that are regulated by the Extension of Security of Tenure Act 62 of 1997 (ESTA).
The PIE Act empowers the courts to only grant eviction orders ‘if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances’ (s 4(6) and (7)).
For a court dealing with an eviction application to avoid rendering an occupier homeless, it must take into account a meaningful report provided by the municipality in that occupier’s jurisdiction. The report must contain the relevant circumstances that are necessary for the court.
Written notice of the eviction application must be given to the municipality in the occupier’s jurisdiction (s 4(2) of the PIE Act). This ensures the participation of the municipality in the proceedings.
When determining if it is ‘just and equitable’ to grant an eviction order, the court must also consider the obligations of municipalities to provide housing for occupiers if they are evicted and rendered homeless (s 4(7) of the PIE Act).
In Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village 2013 (1) SA 583 (GSJ); [2013] 1 All SA 192 (GSJ); 2013 (3) BCLR 337 (GSJ) at para 85, the court defined ‘homelessness’ as:
‘Without any reasonable prospect, between the date of the court order which it is proposed be made that the occupier is to vacate the property to the date upon which the eviction order is to be effected (in the event that the occupier does not vacate the property), of the occupier being able to find alternative accommodation that is (a) of a comparable or better standard to and (b) at a similar rental to and (c) within reasonable proximity to that of the property from which the eviction is sought.’
Considering the above, it is apparent that municipalities are required to be joined in eviction applications because of their obligation to ensure that residents in their jurisdiction have access to adequate housing when facing imminent homelessness.
A municipality’s role in relation to housing must be determined with reference to the Constitution and various enactments, namely, the Housing Act 107 of 1997 (the Housing Act) and the National Housing Code.
The Housing Act expressly gives effect to the Constitution with the preamble recognising that the Act gives effect to
s 26. Furthermore, s 9 of the Housing Act obliges municipalities to, as part of integrated development planning, to take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to ensure, inter alia, that the inhabitants of their respective areas have access to adequate housing.
The National Housing Code was enacted under s 4 of the Housing Act and was incorporated after the Constitutional Court’s decision in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169. It contains the national housing policy and sets out the principles, guidelines and standards that apply to the various programmes effected by the state in relation to housing.
In most eviction applications, municipalities will allege that they cannot fulfil their statutory and constitutional obligations to provide adequate housing to occupiers facing imminent homelessness. The reason given in most cases is that they do not have the available resources to provide adequate housing. In such cases, a structural interdict is the most effective solution for remedying a municipality’s violation of the constitutional right to adequate housing.
A structural interdict is ‘an order under which the court controls compliance with its order’ (C Thakur ‘Structural interdicts: An effective means of ensuring political accountability?’ (https://admin.hsf.org.za, accessed 2-2-2025) cited in L Sekwakwa ‘Structural Interdicts for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)’ (2024) 27 PER). ‘This … entails that the court retains the supervisory jurisdiction and participates in the implementation of its orders by requiring the relevant party to report to it on the measures the party has taken to carry out the court’s order’ (Sekwakwa (op cit)).
Usually, these types of orders will incorporate timeframes within which specific actions must be performed. ‘The benefit of a structural interdict is that the court remains in charge’ of the process to the extent that the order can be complied with (Sekwakwa (op cit)). One could, therefore, argue that a structural interdict is an effective tool to curb non-compliance.
An example of the use and effectiveness of a structural interdict in an eviction application is the matter of President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) where the Pretoria High Court found that the state had failed to provide land and accommodation to the occupiers of the farm Modderklip on their eviction from the farm. Accordingly, the court issued a structural interdict against the state requiring it to present a comprehensive plan on the steps it would take to implement the court order. The High Court’s decision was upheld by the Supreme Court of Appeal and Constitutional Court.
Another example to demonstrate the use and effectiveness of a structural interdict in an eviction application is the matter of Mogale City Local Municipality v Black Tad Investments CC (SCA) (unreported case no 889/2017, 31-5-2018) (Shongwe ADP, Mbha, Van der Merwe and Mocumie JJA and Plasket AJA) where the Supreme Court of Appeal found that the Mogale City Local Municipality (the Municipality) owed the occupiers of Stand 48 Steynsvlei a statutory and constitutional obligation to provide them with emergency accommodation as they were faced with imminent homelessness. Consequently, the court held that the Municipality was in breach of its statutory and constitutional obligations to the occupiers and issued a structural interdict against the Municipality.
In conclusion, with a backlog of 2,4 million households in need of housing, evictions in our country will remain a contentious issue and the state needs to find pragmatic solutions to address the lack of available resources to provide adequate housing to all its citizens.
Evidently, the state is under immense pressure and is struggling to fulfil its constitutional obligation to citizens who do not have access to adequate housing. However, the right to adequate housing is a constitutionally protected right and must be enforced. To this end, the aim of a structural interdict is to remedy constitutional violations and ensure compliance.
Therefore, in eviction applications where the state alleges that it cannot fulfil its constitutional obligation by providing adequate housing to those facing imminent homelessness, then a structural interdict is the most effective tool to ensure the state’s compliance with its constitutional obligations.
Uyanda Zwane LLB (Unisa) is a legal practitioner at Koikanyang Inc in Johannesburg.
This article was first published in De Rebus in 2025 (March) DR 14.
