Abstract

Keywords

Evictions; unlawful occupation; PIE.

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1 Introduction

On 11 March 2020 the World Health Organisation declared Covid-19 a global pandemic and many jurisdictions, including South Africa, proceeded to put mechanisms in place to manage the effects of the disease. 1

 Zsa-Zsa Temmers Boggenpoel. BCom LLB LLD (US). Professor in Private Law, Stellenbosch University, South Africa. Email: zsazsa@sun.ac.za. ORCiD: https://orcid.org/0000-0001-7816-3393.

 Sameera Mahomedy. LLB LLM LLD (US). Senior researcher in law and policy, SAMRC/Wits Centre for Health Economics and Decision Science – PRICELESS SA University of Witwatersrand, South Africa. Email: Sameera.mahomedy@wits.ac.za. ORCiD: https://orcid.org/my-orcid?orcid=0000-0002-8810-3834. The financial assistance of the NRF is hereby acknowledged. Opinions expressed are those of the authors and are not attributable to the NRF.

1 President Cyril Ramaphosa declared a National State of Disaster on 15 March 2020 due to the outbreak of Covid-19. Opting for the recognition of Covid-19 as a state of disaster meant that the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dhlamini Zuma, could make regulations in terms of the Disaster Management Act 57 of 2002 to manage the pandemic. Consequently, the South African government's response to Covid-19 was to issue numerous regulations and guidelines (or directions) at five different stages or levels, all impacting on various rights that citizens were ordinarily used to, including property rights. For a full overview of the list of regulations and guidelines issued by the South African government, see Government of the Republic of South Africa 2019 https://www.gov.za/covid-19/resources/regulations-and-guidelines-coronavirus-covid-19.

is necessary to rethink some aspects of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (hereafter PIE). 5

5 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

Reflecting on the efficacy of PIE is important. South Africa is purportedly engaged in "a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction". 7

7 See Klare 1998 SAJHR 150. Also see Kennedy 1976 Harv L Rev 1713-1724; Botha 2000 THRHR 567; Van der Walt 2006 Fundamina 1-47. For a really interesting critique of the notion of transformative constitutionalism, see Sibanda 2020 LLD 384-412.

this premise we will evaluate three scenarios or examples that show various ambiguities in the application, interpretation and/or implementation of PIE. These ambiguities in our view result in the Act being ill-equipped to meet its goals of giving effect to sections 26(3) and/or 25. PIE is silent in all three examples and does not adequately provide clarity on how to solve the issues at hand, which results in courts having to find ad hoc solutions to particular problems. While this may not be problematic in all cases, as remedies may be provided on ad hoc basis, it may result in hierarchies being upheld and/or constitutional rights being violated in some of these instances. It is here that we hope to shed some light.

The contribution will begin in part 2 by first setting out a brief background to the phenomena of evictions and the unlawful occupation of land in South Africa. This is done as a basis for outlining the context for the enactment of PIE with emphasis on the specific goal that the legislation was intended to achieve. The article then turns to reflect on the three examples where we argue that PIE potentially falls short of its obligation to give effect either to the section 26(3) right not to be arbitrarily deprived of one's home on the one hand, and/or the section 25(1) constitutional right to property, on the other. Throughout the discussion of the three examples in parts 3-6, we analyse whether there are key pronouncements in court cases on the interpretation of PIE and/or sections 26(3) and 25 of the Constitution. It will become clear from the discussion that the courts have had to be creative to account for the shortfall(s) in PIE. The three examples (together with the guidance provided by the courts) will set the platform for a critical investigation into whether PIE may need to be amended if it is to adequately meet its goals, or whether the ad hoc remedies that were created in specific

instances are sufficient to give effect to sections 26(3) and 25 as PIE was initially intended to do. In the final analysis the article will conclude with some thoughts about the way forward for evictions and the unlawful occupation of land in South Africa. In this regard we are particularly interested in determining what these conclusions potentially tell us about how far we have come in our constitutional democracy in the context of evictions and the unlawful occupation of land. The hope is to reflect on these court decisions that have assisted in framing or guiding the interpretation of sections 26(3) and 25(1) of the Constitution, especially where PIE falls short. In our view, this would be valuable in determining the extent to which PIE may need to be amended, or whether courts have done enough to ensure that constitutional rights are adequately protected.

2 Setting the scene: the constitutional approach to evictions

The Preamble of the South African Constitution states unequivocally that we, the people of South Africa, recognise the injustices of our past and strive towards a society based on democratic values, social justice and fundamental human rights. 10

10 Preamble of the Constitution.

The law regulating evictions and the unlawful occupation of land has always been difficult to navigate in South Africa. Evictions are a particularly sensitive issue in the light of the history of forced removals and demolitions under apartheid. 12

12 Pienaar Land Reform 662-667; Muller 2013 Fundamina 367-396; Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) paras 8-13.

relocate them to racially designated areas. The aim of evictions in the pre-constitutional period was therefore to ensure that the matter of unlawful occupation was resolved as quickly as possible. This was regardless of how long the occupiers had spent on the land and whether they considered it their home. Considerations other than ownership and the unlawful occupation of land were therefore largely irrelevant in dealing with evictions in the pre-constitutional period.

The idea that owners are entitled to possession unless a valid defence could actually be raised by the occupier essentially formed part of Roman-Dutch law and was incorporated into South African law. 15

15 Chetty v Naidoo 1974 3 SA 13 (A). Also see Van der Walt Property in the Margins 53-54.

[T]he protection afforded by this [vindicatory] action is very strong, as it is based on the 'normality assumption' that the owner is entitled to exclusive possession of his or her property – this is what is considered the 'normal state of affairs', and what will most likely be upheld in the absence of good reason for not doing so. Any defence has to be raised and proved by the defendant as an exception to this rule. The 'normality assumption' that the owner is entitled to possession unless the occupier could raise and prove a valid defence, usually based on agreement with the owner, formed part of the Roman-Dutch law and was deemed unexceptional in early South African law, and it still forms the point of departure in private law. 17

17 Van der Walt 2002 TSAR 257-258.

This strong common-law position was very often abused to further apartheid laws by exploiting the weak position of black people through various legislative interventions, thus making it easier to evict and remove people with absolutely no regard for any of their rights. 18

18 It is on this basis that the use of the rei vindicatio as the vindicatory remedy to restore ownership of immovable property (thereby ensuring eviction) has become impossible in the new constitutional dispensation in the light of PIE. See s 4(1) of PIE.

The landscape therefore changed considerably when PIE commenced. 19

19 Liebenberg Socio-Economic Rights 311-316; Van der Walt Property in the Margins 6-3; Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC).

However, before we proceed to the examples where PIE is arguably problematic, it may be worth providing some remarks at the outset about the underlying ethos behind PIE. When considering the approach to evictions in terms of PIE, it is important to note that evictions in the new constitutional dispensation impact on socio-economic issues. As such, they cannot be seen from a merely legalistic point of view, as evidently done in the apartheid era. Instead, the approach to evictions should be informed by concepts such as fairness, morality, social values, humanity and dignity. 22

22 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 33; South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC) para 47.

Municipality). 23

23 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC).

In sum, therefore, the aim of PIE is specifically to prohibit illegal evictions and to provide procedures for evicting unlawful occupiers. The Act therefore attempts to protect both unlawful occupiers and landowners. In this regard occupiers are protected by section 26(3), which provides for the right not to be arbitrarily evicted. Very importantly, PIE also stipulates that it is aimed at protecting landowners, in the sense that should they wish to evict, they should do so in terms of the procedures as set out in PIE to protect their constitutional property rights. Upon reflection, it is clear that people still lose their shelter or homes without a court order being granted, even though section 26(3) specifically requires it – and PIE was enacted to give effect to this constitutional provision. On the other hand, landowners who would otherwise be successful in securing an eviction order are sometimes left in unfortunate situations where the execution of eviction orders is simply not possible. In addition, the Act does not provide much guidance in terms of preventing unlawful occupation, except for section 3, which in any event does not go very far in terms of providing a sufficient indication of how the unlawful occupation of land can be avoided. 26

26 This section deals with the prohibition of the receipt or solicitation of consideration in respect of the unlawful occupation of land.

aspects that leave landowners and unlawful occupiers in very precarious positions as far as evictions and unlawful occupations are concerned. 27

27 There is also a number of interesting ancillary issues that relate to evictions and the unlawful occupation of land that we cannot address in this contribution. See, for instance, Viljoen 2020 Stell LR 201-225; Muller and Marais 2020 TSAR 103-124. In both instances the authors challenge one to think about approaching evictions from a systemic point of view. Viljoen considers whether administrative law has a more active role to play in evictions that are undertaken by the state. Muller and Marais in turn identify counter-spoliation as a potential remedy in the context of eviction in the light of an earlier argument made by Scott in the same journal calling for the use of this common law remedy in response to unlawful occupation of land. See Scott 2018 TSAR 158-176. This is of course an interesting line of argument if one considers the very recent judgment of South African Human Rights Commission v City of Cape Town (WC) (unreported) case number 8631/2021 of 15 July 2022, in which the Court had to determine whether the City of Cape Town's reliance on counter-spoliation when demolishing structures passes constitutional muster. The Court found that when properly interpreted and applied, counter-spoliation is not unconstitutional or invalid. However, the use of counter-spoliation would be inconsistent with the Constitution when incorrectly interpreted and applied in cases where it allowed for evictions and demolitions. Interestingly, the Court includes "whether occupied or unoccupied" in its understanding of an informal dwelling, when looking at counter-spoliation as a defence. See paras 22-100 and 159.1.7.1.

3 Impossibility of eviction orders

3.1 Introduction

The first aspect of evictions law that may need to be reconsidered in light of the potential shortcomings in PIE exists in the context where it is found that an eviction order – although just and equitable – cannot be executed or enforced for some reason. PIE does not make provision for such a situation. 28

28 Although this is a particular shortcoming that existed before the Covid-19 pandemic struck, as will be discussed below, one could quite easily imagine that times of crisis may impact on the execution or enforcement of eviction orders. Interestingly, a moratorium was placed on evictions during the level 5 Covid-19 lockdown. While this may be viewed as a laudable step in the state's attempts at minimising homelessness during this period, given the severity of the effects of evictions on a large portion of the population, there is a clear need to think about more long-term, sustainable solutions.

especially since the impossibility of effecting an eviction order (for whatever reason) could affect constitutional rights.

3.2 When evictions are impossible to enforce

The question of the impossibility of effecting eviction orders arose in President of the Republic of South Africa, Minister of Agriculture and Land Affairs v Modderklip Boerdery Bpk (Pty) Ltd. 29

29 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC).

The matter went to the Supreme Court of Appeal (hereafter SCA) and the Constitutional Court. Both courts decided to award Modderklip constitutional damages for the violation of its constitutional rights. 34

34 Modder East Squatters v Modderklip Boerdery (Pty) Ltd, President of the Republic of South Africa v Modderklip Boerdery 2004 3 All SA 169 (SCA) para 52; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC) para 68.

occupiers to have accommodation until suitable alternative accommodation was identified. This purportedly made constitutional damages an effective remedy in the particular circumstances. Interestingly, Modderklip was initially hesitant to evict the occupiers despite the prompting by the state to do so, and requested the state to expropriate (or purchase) the property. This may be indicative of its sense of wanting the state to resolve the issue without having to resort to the eviction of the occupiers.

It should be noted that the SCA and the Constitutional Court in Modderklip concluded that the appropriate remedy for the breach of constitutional rights was constitutional damages. However, the SCA awarded the remedy for the breach of sections 25 and 26(1) and (2), whereas the Constitutional Court awarded constitutional damages on the basis of the violation of sections 1 and 34 of the Constitution. In the Constitutional Court, Langa ACJ further emphasised that many factors had to be taken into account to determine what would be appropriate relief in the particular case. 35

35 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC) para 54.

Therefore, the outcome in Modderklip was that (re)moving the occupiers, in this case, was not the appropriate remedy and that compensation (in the form of constitutional damages) would be more appropriate based on the specific circumstances in the case. The implication is that "landowners must accept a reasonable delay in having an eviction order enforced, allowing the responsible authorities time to ensure that the evictees would not be rendered homeless." 37

37 Van der Walt 2015 European Property Law Journal 213.

was granted in order to reconcile the state's duty to the landowner, on the one hand, with the obligation on the state towards the homeless, on the other. Although the outcome in Modderklip in this regard can be applauded 38

38 Van der Walt 2005 SAJHR 161. Also see Brand "'Politics of Need Interpretation'" 35, where Brand notes that the ability of Harmse J in Modderklip to find a remedy where the state had initially indicated that there was no remedy should be applauded. Therefore, Brand argues that "Harmse J's 'can do' rhetoric powerfully … underscores a participatory understanding of democracy and a discursive understanding of politics and counteracts the idea that it is only the State who can engage politically with the issues and then hand down solutions from on high." Also see Liebenberg 2014 Nordic Journal of Human Rights 319. In terms of participatory approaches to remedies for the protection of socio-economic rights, the South African Constitutional Court has adopted its jurisprudence on meaningful engagement. For further commentary on the remedy of meaningful engagement, see Chenwi 2009 CCR 371-393; Ray 2011 SAJHR 107-126; Muller 2011 Stell LR 742-758; Chenwi 2011 SAPL 128-156; Liebenberg 2012 AHRLJ 1-29; Van der Berg 2013 SAJHR 376-398; Mahomedy Potential of Meaningful Engagement.

Let us begin by providing some thoughts on what this case illustrates about the normative system that purports to regulate property in South Africa. In the context where PIE does not provide a solution to the particular problem at hand, courts are required to intervene and provide a remedy where the law falls short. 39

39 This is in line with what the Constitutional Court stated in Fose v Minister of Safety and Security 1997 3 SA 786 (CC) para 69: "Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to 'forge new tools' and shape innovative remedies, if needs be, to achieve this goal."

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. 40

40 The provision goes further to stipulate that: "The persons who may approach a court are – (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members." See s 38 of the Constitution.

Section 172 of the Constitution provides further guidance when a court seeks to develop a constitutional remedy and states that:

When deciding a constitutional matter within its power, a court – (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is

just and equitable, including – (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. 41

41 Section 172 of the Constitution. O'Regan explains that "[t]o determine a case, a court must start with the clear mandate granted by section 172 and determine the constitutionality of any law or conduct that is challenged before it. There is no place for a portmanteau principle of non-justiciability on prudential concerns alone." See O'Regan 2012 MLR 2.

These two provisions provide the (constitutionally mandated) platform from which a court can assume a broad discretion when it comes to finding appropriate remedies for the infringement of constitutional rights. In this regard South African courts instinctively protect existing property rights, and generally find it difficult to develop solutions that are innovative and unorthodox or, very importantly, that cause too much of an inroad into property rights. 42

42 Boggenpoel 2019 Stell LR 234-249; Cloete and Boggenpoel 2018 SALJ 432-446; Boggenpoel and Slade 2020 CCR 379-399. Interestingly, Fennel argues that "[t]he work of refining property law to strike the right balance between access and exclusion is always ongoing". See Fennel 2007 U Pa L Rev 278. Also see Peñalver and Katyal 2007 U Pa L Rev 1095-1186.

the argument that ownership discourse, dominated as "it is by the vocabulary, rhetoric and logic of exclusion, tends to pre-determine the outcome of property disputes so that sharing, its conceptual opposite, is under-represented in property remedies. Consequently, courts are constrained in their remedial options, even when the intentions, expectations of fairness and sense of reliance of either or both parties point away from exclusionary outcomes." 47

47 Van der Walt 2015 European Property Law Journal 162.

In sum, the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law. … The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The 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. 49

49 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 23 (own emphasis added).

Theunis Roux writes that the Constitutional Court's judgment in PE Municipality illustrates the fact that the Court indicated a particular preference for "context-sensitive balancing" specifically regarding the relationship between section 25 and section 26 of the Constitution. 50

50 Roux Politics of Principle 327. Roux mentioned that other judgments in the context of property rights also show the same trend, e.g. First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) and Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).

implementation of his eviction order, but for it to be carried out provision has to be made for the future accommodation of the unlawful occupiers once they have been removed." 52

52 Van der Walt 2005 SAJHR 150.

From a normative perspective and judging by these observations regarding the outcome in Modderklip, it may not be entirely presumptuous to suggest that the hierarchies of property are still very much in place in democratic South Africa. Therefore, despite various limitations on ownership, especially the limitations caused in the eviction context, we are still a society that views and values ownership highly. 54

54 Boggenpoel 2019 Stell LR 234-249. Also see Muller et al Silberberg and Schoeman's The Law of Property 103; Wilson Human Rights and the Transformation of Property 11-13.

From a practical point of view, many may argue that Modderklip shows perfectly how the balancing of rights should be done and that the case created a win-win situation for the landowner and the unlawful occupier. But was it really a victory for an owner who is now unable to use his property

because unlawful occupiers are continuing to reside on part of the land? And are the unlawful occupiers not still left in a precarious and uncertain position as far as security of tenure is concerned? What land rights do these occupiers (continue to) have? These are just some of the practical questions that illustrate that the outcome in Modderklip, although commendable in a sense, is not tenable. We would argue that these are not long-term, sustainable solutions, but ad hoc arrangements that result in further uncertainty and conflicts between those that have property and those that do not. Jackie Dugard has made a similar observation where she suggests that expropriating property in the case where the eviction of unlawful occupiers is not just and equitable may be the best long(er)-term solution. 58

58 Dugard 2018 PELJ 1-20.

Dugard points towards the Expropriation Act 59

59 Expropriation Act 63 of 1975.

Dugard that it does create an option which is a better solution than constitutional damages. 66

66 It should be noted that constitutional damages is not the same as compensation for expropriation, although the lines between these two remedies are undeniably blurred, especially when it comes to quantifying the amounts in each case.

Constitutional damages is always granted for a failure to adequately give effect to constitutional rights; it is retrospective for something that has gone wrong. 67

67 Bishop "Remedies" ch. 9, 79.

Kate's case, simply put, is that the unreasonable delay in considering her application deprived her during that period of her constitutional right to receive a social grant, and for that deprivation she ought to be recompensed by an order for damages. 70

70 MEC, Department of Welfare, Eastern Cape v Kate 2006 4 SA 478 (SCA) para 17.

An important conclusion that can be drawn from the Kate decision is that the need for constitutional damages arose because the state failed to adequately give effect to the constitutional right to social assistance (in terms of section 27 of the Constitution) caused by its tardiness in awarding the social grant. The remedy was borne from the wide discretion that courts

have in terms of section 38 of the Constitution to create remedies to give effect to the rights in the Constitution. Similarly, in Modderklip both the SCA and the Constitutional Court concluded that the appropriate remedy for the breach of constitutional rights was constitutional damages, although as already mentioned, the SCA awarded the remedy for the breach of sections 25 and 26(1) and (2), whereas the Constitutional Court awarded constitutional damages based on the violation of section 34 of the Constitution. 71

71 Van der Walt comments that "[t]he Constitutional Court decision was therefore not based on the state's duty to protect s 25 or 26 (or even s 34) rights, but simply on the duty, arising directly from s 34, to provide suitable and effective enforcement procedures and to assist in implementing them when necessary. In this regard, the Constitutional decision is different from the SCA decision, at least as far as its ostensible basis is concerned." See Van der Walt 2005 SAJHR 158.

It should be noted that the SCA in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 72

72 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 4 SA 337 (SCA).

is now clear from the Fischer judgment. 75

75 Fischer v Persons Whose Identities are to the Applicants Unknown and Who Have Attempted or are Threatening to Unlawfully Occupy Erf 150 (Remaining Extent) Philippi in re: Ramahlele v Fisher 2014 3 SA 291 (WCC).

4 PIE does not provide a definition of "home" 76

76 Various scholars have written on this issue. See, for example, Robbertze and Muller 2005 De Jure 332-352; Fox O'Mahony Conceptualising Home.

Another potential shortcoming of PIE relates to the fact that while PIE is set up to protect unlawful occupiers against illegal eviction from their “homes” in line with section 26(3), it does not define what a “home” is or cater for the fact that a “home” is simply not the same for everyone. This issue was raised in the recent case of South African Human Rights Commission v City of Cape Town 77

77 South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC). Also see Boggenpoel and Mahomedy 2021 Stell LR 482-495.

It should be mentioned at the outset that PIE is clear in so far as it defines a "building or structure" to include "any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter." 79

79 Section 1(i) of PIE.

As will be elaborated on below, this has also been an issue in various cases, especially considering that there is no clear legal definition for "home". This problem is further exacerbated by the fact that interpretations often focus on the physical nature of a structure and when a structure becomes a home instead of the core function of what a home is essentially supposed to do, which was the issue in the SAHRC case. When dealing with what constitutes a home for the purposes of PIE, courts have focussed on different elements, such as the type of structure or the length of occupation.

In this regard it should be noted that what constitutes a home may be fundamentally different for different people. This nuance and complexity is sometimes explicitly ignored and often disregarded intentionally. Arguably in SAHRC it was disregarded intentionally because the City did not believe partially erected structures could constitute a home, most likely to avoid the need to comply with PIE. The Western Cape High Court challenged this practice of the City of Cape Town and held that "[w]hether such structures are complete, incomplete, or in the process of being built, they are capable of providing shelter from the elements especially during the winter season." 80

80 South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC) para 55.

A plethora of cases has had to grapple with the definition of a home for the purposes of PIE. As mentioned above, different elements have been considered by the courts when deciding what constitutes a home. In Barnett v Minister of Land Affairs 81

81 Barnett v Minister of Land Affairs 2007 6 SA 313 (SCA).

the permanence requirement. In this case the Court highlighted the fact that, regardless of the occupation period, the occupiers considered the structures in question to be their homes. The Court emphasised that when considering the permanence of a structure in the case of occupiers, a lower standard should be adopted. In City of Cape Town v Rudolph 84

84 City of Cape Town v Rudolph (89700/01) [2003] ZAWCHC 29 (7 July 2003).

Based on Barnett and Breedevallei, the Court in Fischer afforded a more generous definition for the term home. The Court held that a home includes informal structures that are fashioned from whatever resources the occupiers could find. This is regardless of the shortness of the period of occupation. Additionally, Gamble J in Fischer held that incomplete structures or structures that are being erected are still able to fulfil the function of sheltering the occupiers from the elements. However, this decision was set aside by the SCA, which was specifically critical of the court a quo's willingness to include structures that had recently been erected as qualifying for the protection of PIE. Furthermore, the SCA criticised the High Court judgment for accepting that the existence of a structure coupled with an intention to occupy that structure was sufficient to claim protection under PIE. The Court a quo's decision has also been criticised by Cramer and Mostert for being overly wide, with the standard for permanency being set too low. 86

86 Cramer and Mostert 2015 Stell LR 600.

shelters should still be recognised as homes until the residents thereof have access to adequate housing.

This wider interpretation that we argue for is in line with Lorna Fox O'Mahony's research on the meaning of “home”, which was used by the court a quo in Fischer. Fox O'Mahony notes that

the extent to which the law seeks to recognise and protect the status of home – whether as a refuge or sanctity from the outside world, a place of security, privacy or safety, or even in the most basic sense as a shelter – varies, in a more or less ad hoc fashion, depending on the context in which legal issues arise and particularly, on the weight of the competing interest(s) at stake in any given case. 90

90 Fox O'Mahony Conceptualising Home 4.

She highlights the need for proper engagement on what constitutes a home for legal purposes and argues that a home is more than a physical structure that provides shelter from the elements. 91

91 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 17.

have and incrementally develop these shelters as they are able to and within their current means.

5 PIE does not distinguish between occupied and unoccupied structures

In the SAHRC judgment, as highlighted above, the City of Cape Town argued that PIE did not apply to unoccupied structures. Therefore evictions from and demolitions of unoccupied structures purportedly did not (or do not) elicit the constitutional protection afforded by PIE. A remaining shortfall in the law is therefore the question of whether PIE applies in the case of occupied and unoccupied structures. In this regard it should be noted that although PIE is set up to protect unlawful occupiers against illegal eviction from a building or structure, the legislation does not pertinently distinguish between occupied and unoccupied structures or buildings as a mechanism to determine whether the Act is in fact applicable or not. Consequently in SAHRC the City noted that it "does not accept that unoccupied structures attract the protection of PIE." 97

97 South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC) para 40.

Upon reflection it appears that there is scant authority for this view in jurisprudence or academic literature. In the current definition of "building or structure" in the Act there is also no specific reference to the fact that the building or structure should specifically be occupied for PIE to be applicable. However, PIE does define "evict" as a "means to deprive a person of occupation of a building or structure, or the land on which such building or structure is erected". This definition seems to imply that no eviction will take place unless there was occupation of a building or structure. Although the City did not make this clear, this definition may have been the basis upon which the City argued that the Constitution (and consequently PIE) would not be applicable if there was no occupation of the building or structure.

PIE may need to be amended in future to make it clearer whether it applies to occupied and unoccupied structures so that the concerns briefly alluded to in this part of the article are adequately accounted for. The risk associated with the potential violation of various constitutional rights is simply too big to leave the discretion in the hands of private landowners, or the state for that matter, to decide whether PIE applies to unoccupied structures or not. In this regard, at least in the context of municipalities, Van Wyk points out that local government has a constitutional obligation to ensure that it reacts to

and deals with evictions in a constitutionally compliant manner. 99

99 Van Wyk 2011 PELJ 50-51.

Several further problems may potentially arise with an interpretation of PIE that allows for the Act to be applicable only to occupied buildings or structures. First, who is going to be tasked with the responsibility of deciding whether a particular building or structure is occupied or not? Second, on what basis will this decision be made? At the moment the discretion to decide whether an eviction is just and equitable (and the conditions under which such an eviction order should take place) rests with the Courts. 102

102 Sections 4(8) and 6(3) of PIE.

6 Bypassing PIE to prevent the unlawful occupation of land: back to criminalisation?

Both issues discussed under parts 4 and 5, namely the gap in PIE in terms of the definition of “home” as well as the lack of a distinction between occupied and unoccupied structures cannot be discussed by simply looking at the legislation and court cases. They require some appreciation and

exposure to the deeper problems of poverty, inequality and marginalisation, and the underlying issue of South Africa's inability to deal effectively with these social ills. More specifically, there is an overarching need for academic research to also focus on the lack of implementation of the legislation. What is equally important is the lived realities of the people affected by the legislation. This is especially important, given the fact that South Africa essentially finds itself in a housing crisis that often results in the largescale unlawful occupation of land – with no appropriate way to deal with this reoccurring issue. At local government level, municipalities are trying to find various ways of dealing with the unlawful occupation of land, which often arises in response to the growing need for land given the persistent inequality of land relations in South Africa. The terrain of the unlawful occupation of land and evictions law is becoming an increasingly complex issue given the ongoing social ills mentioned above. In this context, various strands of arguments are surfacing about what is possible (or not) in terms of existing law. A gap has arguably emerged in the law between the prevention of unlawful occupation and the applicability and/or use of PIE. Therefore we would like to focus the attention in this part on the issue of the lack of implementation of PIE in certain instances, purportedly in cases where government attempts to deal with the unlawful occupation of land.

Government, especially municipalities, often relies on the above-mentioned gaps in PIE to argue against its responsibility to comply with the constitutional standards in the context of evictions. 104

104 This was seen in South African Human Rights Commission v City of Cape Town (WC) (unreported) case number 8631/2021 of 15 July 2022 para 35, where the City attempted to use the defense of counter-spoliation coupled with a narrow understanding of "home" to circumvent the application of PIE as well as its constitutional obligation to provide emergency accommodation.

contribution. For instance, the disregard for the human dignity of those that are "homeless", but who erect informal structures that do not easily conform to a common understanding of "home" for the purposes of PIE, is especially problematic. The language of "cleaning up" the city attests to the fact that those who are ordinarily viewed as "homeless", or people that erect informal structures and are presumably causing the unlawful occupation that the municipalities are trying to prevent, are viewed as a problem or something that needs to be "cleaned up". 107

107 See Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 18, which emphasises that society as a whole is demeaned when government amplifies vulnerable groups' marginalisation instead of mitigating it.

Of particular interest for this contribution is the fact that the clean-up operations also often involve the use of excessive force. 108

108 This includes the use of rubber bullets. See Bornman and Nyoka 2020 https://www.newframe.com/city-of-joburgs-heartless-red-ants-demolitions/; Neille 2020 https://www.dailymaverick.co.za/article/2020-04-22-gauteng-demolitions-red-ants-in-all-out-war-on-the-poor/; Bennie 2017 https://www.dailymaverick.co.za/

article/2017-07-14-groundup-red-ants-accused-of-firing-rubber-bullets/. Additionally, personal belongings such as identity documents and other important documents, mattresses, blankets, clothing, money and even medication are also destroyed or confiscated. Often there is no inventory of what was taken, and their belongings are taken without prior engagement or a court order. See Ngomane v City of Johannesburg Metropolitan Municipality 2020 1 SA 52 (SCA) paras 2 and 7; Gillespie et al 2021 https://www.newframe.com/part-one-the-red-ants-and-the-city-of-cape-town/.

the interwoven link between the prevention of unlawful occupation of land on the one hand, and the applicability of PIE and its need to ensure that evictions take place in a dignified manner, on the other.

Many different issues are infused in this space, which makes this particular situation very complex and difficult to decipher. It is important to unravel where a municipality's (constitutional) obligations start and end. This depends largely on whether PIE is (or should be) applicable in the two instances mentioned in parts 4 and 5, but it certainly goes further than that as well. For our part, we focus on the issues directly related to PIE, its applicability and the lack of clear guidance in PIE regarding the unlawful occupation of land. What further complicates the matter of the applicability of PIE in the two instances highlighted in parts 4 and 5, and the use of the legislation in the prevention of the unlawful occupation of land, is a municipality's right to enact by-laws that assist it in regulating its affairs – also its affairs in terms of unlawful occupation. Of course, one clearly sees the need for municipalities to have the power to make certain by-laws. However, we would argue that by-laws and overarching legislation (such as PIE) must work together as opposed to against each other, especially when it comes to giving effect to constitutional rights. Stated differently, by-laws should not be used as a mechanism to bypass constitutional obligations that were aimed at giving effect to existing legislation, such as PIE. The lack of clarity on what constitutes a home, the uncertainty of whether occupied and unoccupied structures are included under the purview of PIE (and who is tasked to decide the matter), coupled with the need for a greater understanding of the realities of those threatened with evictions are aspects that are made more difficult to address when by-laws are established to regulate evictions and the unlawful occupation of land. By-laws of this nature can be problematic if they potentially conflict with the purpose and provisions of PIE as set out in part 2 of this article.

The city clean-ups referred to above are often conducted under municipal by-laws. A good example of this is illustrated through the City of Cape Town's by-laws, which have recently been characterised as criminalising homelessness. These by-laws have come into question at the High Court and the Equality Court, where various homeless people, represented by Ndifuna Ukwazi, have challenged their constitutionality. 111

111 Payi 2021 https://www.iol.co.za/weekend-argus/news/city-of-cape-towns-by-laws-challenged-by-homeless-in-court-action-52590643-69fd-40c6-b3e5-81f40b63705b.

both unconstitutional and discriminatory. In particular, they argue that the "by-laws criminalise homelessness by making it a crime for persons living on the street to conduct ordinary life-sustaining activities, like sleeping, camping, resting, bathing, erecting a shelter or keeping personal belongings in public." 114

114 Ndifuna Ukwazi 2021 https://nu.org.za/wp-content/uploads/2021/12/ NU_press_release_2021_04_07.pdf. Also see City of Cape Town: Streets, Public Places and the Prevention of Noise Nuisances Amendment By-law, 2021.

Another by-law, the City of Cape Town Unlawful Occupation By-law, 116

116 City of Cape Town: Unlawful Occupation By-law, 2021.

demolished under this by-law. This once again defeats the purpose of PIE and creates the potential possibility for local government to essentially evict people from their homes without any judicial oversight by evoking the by-law. This speaks to the need for the by-laws and legislation to work together as opposed to against one another. We simply cannot be in a situation where local government can effectively evict people from their homes without a court order using these by-laws, in the process circumventing the procedural and substantive safeguards in PIE.

If one considers these by-laws in the light of some of the loopholes in PIE and the complexities mentioned in this contribution, a number of observations can be made. Firstly, it is clear as highlighted above that the by-laws can complicate the matter of whether a structure is a home and/or whether it is occupied. In fact, the by-law goes further by providing that structures that are intended to be homes can be demolished, which in our view goes against the very grain of what PIE was intended to achieve, which is judicial oversight in instances where an eviction from a home is envisaged. Judicial oversight is absolutely imperative in these instances to ensure that evictions take place in a dignified manner in post-apartheid South Africa. Secondly, the punishment encapsulated in the by-law is both unfortunate and counter-intuitive. If one considers that the homeless population ordinarily do not have employment, a fine as a form of punishment would be nonsensical. Furthermore, criminalising homelessness and the unlawful occupation of land 122

122 See Killander 2019 SAJHR 70-93.

unravel the constitutional implications more generally of this approach to homelessness and the unlawful occupation of land. Given the underlying historic, systemic socio-economic issues linked to homelessness it is quite unfortunate that efforts and resources are not instead being focussed on providing shelters and houses for those without homes. Clearly, a more proactive strategy to address this issue is required.

In conclusion, while PIE can be commended for its noble intentions of putting mechanisms in place in democratic South Africa to ensure that evictions are performed in a dignified manner, the question that needs to be asked is how much PIE can really do. What was the piece of legislation intended to do, and has it lived up to its noble goals in the light of the social ills mentioned above? This question is especially crucial if one considers that by-laws and a lack of the implementation of PIE in certain instances provide opportunities to circumvent the legislation within the broader imperative of preventing the unlawful occupation of land, hence making cities cleaner and more sanitary – as valuable as the latter goals may be. If vulnerable groups such as the homeless and those living in informal structures have uncertainty about gaining entry into PIE, that uncertainty needs to be clarified. 130

130 Similar trends have been seen in the context of informal settlements, where government has been hesitant to implement the Upgrading of Informal Settlements Programme and instead chooses to evict and relocate communities. This speaks to the broader issue of governments not taking seriously the right to housing and the need to redress historical land patterns. See e.g. Mahomedy Investigating the Role of Participation 203-205.

effectively results in illegal evictions playing themselves out under the guise of the prevention of unlawful occupation. If we do not see a more integrated and aligned approach between these aspects, we may continue to see an influx of unlawful occupation, with no effective way to deal with the matter. A better strategy is clearly needed to prevent unlawful occupation, something which is currently lacking in PIE and in local government's approach to the problem. The suggested by-laws (in some contexts) arguably worsen the problems instead of contributing to solutions.

7 Conclusion

PIE was adopted to address the abuses of apartheid and to ensure that evictions in future take place in a manner consistent with the values underlying our constitutional democracy. Its provisions must be interpreted against this background, and where it falls short, these shortcomings should be highlighted to ensure that they can be adequately addressed, lest we fall back into old ways of thinking and doing. The approach to evictions and the unlawful occupation of land post-apartheid is informed by the Constitution and PIE. What is very clear is that this approach to evictions essentially embodies a human rights paradigm as opposed to a contravention paradigm under apartheid, where the focus was on ownership rights and eviction proceedings took place in an essentially technocratic and top-down manner. 134

134 Muller et al Silberberg and Schoeman's The Law of Property 103-105.

There is arguably no better place to see a property law system's ideology playing out than in the context of the eviction of an unlawful occupier. It highlights property law's presumptive power of ownership, which assumes that ownership is the pinnacle of all rights and that all other rights are in stages of inferiority to ownership. 135

135 Boggenpoel 2019 Stell LR 237, 247.

rights are still strongly protected, we should remember that PIE was also enacted to give effect to section 25 of the Constitution, as there is a notable and persistent push to ensure that those without property rights are afforded the necessary protection by the enforcement of constitutional rights other than property. A broader constitutional lens is therefore imperative, what Sachs J in PE Municipality termed a "broad constitutional matrix". However, 30 years down the line challenges in the application and implementation of PIE are clearly emerging. This contribution has zoomed in on areas of eviction law where PIE potentially falls short, leaving the Courts to come up with solutions not provided in the legislation. We hoped to place the solutions under the spotlight firstly to determine on a practical level whether an amendment of PIE is needed or whether the solutions are sufficient to ensure that the constitutional rights that should be protected are done so satisfactorily. Secondly, on a normative level these problems were placed on the table to assess whether we have really shifted in our traditional ways of thinking of ownership and the rights of unlawful occupiers in democratic South Africa. We suggest that the hierarchies of property are still very much in place as we navigate the context of unlawful occupation of land and evictions, especially if one considers the three instances where PIE falls short.

In all instances where PIE falls short of providing clarity, courts have generally been proactive in ensuring that the solutions found have been nuanced and balanced. Most notably, in the context of the impossibility of executing certain eviction orders the courts have tried to reach solutions that would not simply entrench property rights but would also give effect to the rights of unlawful occupiers. In this respect it may be necessary to think creatively about an appropriate remedy that is more favourable, also in terms of a longer-term solution. We argue that it is necessary to provide clearer and more concrete solutions – and (compensation for) expropriation may provide for such a possibility. Developments have certainly been made where uncertainty existed about the notion of "home", and the courts have tried to give effect to a wider interpretation of the notion. However, clarity is needed on this, as may be seen in the Ngomane case, where the occupiers clearly viewed their rudimentary (and indeed temporary) structures as homes. Nonetheless, the Court held that:

not even the most generous interpretation of the words 'building or structure', temporary or permanent, can lead to the conclusion that the material confiscated falls within their meaning. There were simply no buildings or structures that could be demolished, and no demolition occurred. There was, similarly, no eviction. 136

136 Ngomane v City of Johannesburg Metropolitan Municipality 2020 1 SA 52 (SCA) paras 16-17.

In instances where it is not clear whether PIE applies to occupied and unoccupied structures, it remains important to consider what is at stake if this uncertainty is not clarified. Leaving this decision on the applicability of PIE to individuals leaves too much room for the disregard of human rights and is highly problematic. We would argue that the importance of judicial oversight in the decision of whether a structure is occupied (or not) cannot be overemphasised.

In the final section of this article we explored the issue of the non-implementation of PIE in instances where government purportedly seeks to ensure the prevention of the unlawful occupation of land. The interplay between the use of by-laws and the existence of PIE is also foregrounded. Lest we be (mis)understood for not appreciating the magnitude of the problem or for failing to provide solutions or even for being overcritical of the attempts by local government to deal in some way with the unlawful occupation of land, it may be important to point out that this discussion has modestly sought to highlight that flouting constitutional rights in favour of a broader imperative of prevention of unlawful occupation is not a favourable or sustainable solution to the problem in the long run. Our call is for us to rethink our approach to the problem holistically. There is clearly a need for a more integrated approach under the Constitution to the issue of unlawful occupation, homelessness and evictions. These issues cannot and should not be seen in isolation from each other, which is something that is currently happening. Local government by-laws should give effect to PIE and not undermine its purpose. In this respect, criminalising the unlawful occupation of land is an approach adopted in PISA, and not in PIE. Human dignity should always underpin any approach to these issues. We should be wary of undoing the progress made by resorting to approaches that mirror apartheid and the approaches in PISA – something we are currently dangerously close to doing.

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Bhengu L 2021 "We are Powerless": Red Ants Evict People Living Illegally in Posh Joburg Suburb https://www.news24.com/news24/ southafrica/news/we-are-powerless-red-ants-evict-people-living-illegally-in-posh-joburg-suburb-20210406 accessed 10 September 2022

Bornman and Nyoka 2020 https://www.newframe.com/city-of-joburgs-heartless-red-ants-demolitions/

Bornman J and Nyoka N 2020 City of Joburg's Heartless Red Ants Demolitions https://www.newframe.com/city-of-joburgs-heartless-red-ants-demolitions/ accessed 10 September 2022

Evans 2022 https://www.news24.com/news24/southafrica/news/you-will-die-here-red-ant-recounts-eviction-battle-in-knysna-20220409

Evans J 2022 "You Will Die Here": Red Ant Recounts Eviction Battle in Knysna https://www.news24.com/news24/southafrica/news/you-will-die-here-red-ant-recounts-eviction-battle-in-knysna-20220409 accessed 10 September 2022

Gillespie et al 2021 https://www.newframe.com/part-one-the-red-ants-and-the-city-of-cape-town/

Gillespie K et al 2021 Part One | The Red Ants and the City of Cape Town https://www.newframe.com/part-one-the-red-ants-and-the-city-of-cape-town/ accessed 10 September 2022

Government of the Republic of South Africa 2019 https://www.gov.za/covid-19/resources/regulations-and-guidelines-coronavirus-covid-19

Government of the Republic of South Africa 2019 Regulations and Guidelines: Coronavirus COVID-19 https://www.gov.za/covid-19/resources/regulations-and-guidelines-coronavirus-covid-19 accessed 10 September 2022

Ndifuna Ukwazi 2021 https://nu.org.za/wp-content/uploads/2021/12/ NU_press_release_2021_04_07.pdf

Ndifuna Ukwazi 2021 Press Statement: Eleven People Who are Homeless Go to Court to Challenge Cape Town's Discriminatory By-laws https://nu.org.za/wp-content/uploads/2021/12/NU_press_release_2021_ 04_07.pdf accessed 10 September 2022

Neille 2020 https://www.dailymaverick.co.za/article/2020-04-22-gauteng-demolitions-red-ants-in-all-out-war-on-the-poor/

Neille D 2020 Gauteng Demolitions: Red Ants in All-Out War on the Poor https://www.dailymaverick.co.za/article/2020-04-22-gauteng-demolitions-red-ants-in-all-out-war-on-the-poor/ accessed 10 September 2022

Payi 2021 https://www.iol.co.za/weekend-argus/news/city-of-cape-towns-by-laws-challenged-by-homeless-in-court-action-52590643-69fd-40c6-b3e5-81f40b63705b

Payi B 2021 City of Cape Town's By-laws Challenged by Homeless in Court Action https://www.iol.co.za/weekend-argus/news/city-of-cape-towns-by-laws-challenged-by-homeless-in-court-action-52590643-69fd-40c6-b3e5-81f40b63705b accessed 10 September 2022

Staff Reporter 2014 https://mg.co.za/article/2014-09-18-joburg-residents-battle-red-ant-evictions/

Staff Reporter 2014 Jo'burg Residents Battle Red Ant Evictions https://mg.co.za/article/2014-09-18-joburg-residents-battle-red-ant-evictions/ accessed 10 September 2022

Staff Reporter 2021 https://www.iol.co.za/capeargus/news/city-forks-out-r1708m-more-for-security-in-the-fight-against-cape-land-invasions-411939da-4da6-4967-a113-ba5f40ca5006

Staff Reporter 2021 City Forks Out R170.8m More for Security in the Fight against Cape Land Invasions https://www.iol.co.za/capeargus/news/city-forks-out-r1708m-more-for-security-in-the-fight-against-cape-land-

invasions-411939da-4da6-4967-a113-ba5f40ca5006 accessed 10 September 2022

List of Abbreviations