Compensating Landowners? The State's (Limited) Duty toward Landowners in Delayed Eviction Matters
DOI:
https://doi.org/10.17159/1727-3781/2021/v24i0a6190Keywords:
Constitutional damages, distributive justice, evictionsAbstract
The unlawful occupation of private land creates a tension between the interests of the unlawful occupiers to avoid homelessness and the landowner to regain control of its property. To balance the interests and rights of the occupiers and the landowners, courts have relied on the municipality, due to its constitutional housing duty, to provide the unlawful occupiers with alternative accommodation. The provision of alternative accommodation prevents homelessness, while at the same time allowing the landowner to regain control of its property.
In response to demands by unlawful occupiers that they provide alternative accommodation, municipalities have either failed to cooperate or argued that they are unable to accommodate the unlawful occupiers immediately due to resource constraints. This has led to delays in eviction matters to the detriment of landowners. Only in one delayed eviction matter did the Constitutional Court order relief for the landowner. It ordered the municipality to pay constitutional damages to the landowner. After this order, scholars have advocated for similar relief to be granted in other delayed eviction matters. This article aims to add to that debate, by determining under what circumstances an award of constitutional damages in such matters would be appropriate, just and equitable, as is required of a constitutional remedy.
Downloads
References
Bibliography
Literature
Aristotle Nicomachean Ethics Ross WD (Translator) (Batoche Books Kitchener 1999)
Bezuidenhout K Compensation for Excessive but Otherwise Lawful Regulatory State Action (LLM-dissertation University of Stellenbosch 2015)
Bishop M "Remedies" in Woolman S and Bishop M (eds) Constitutional Law of South Africa 2nd ed (Juta Cape Town 2013) ch 9
Calabresi G and Melamed AD "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral" 1972 Harv L Rev 1089-1128
Chenwi L "Putting Flesh on the Skeleton: South African Judicial Enforcement of the Right to Adequate Housing of those Subject to Evictions" 2008 HR L Rev 105-137
Chenwi L "A New Approach to Remedies in Socio-economic Rights Adjudication: Occupiers of 51 Olivia Road v City of Johannesburg" 2009 CCR 371-393
Coleman J "Corrective Justice and Wrongful Gain" 1982 JLS 421-440
Cook KS and Hegtvedt KA "Distributive Justice, Equity, and Equality" 1983 Annu Rev Sociol 217-241
De Ville JR Judicial Review of Administrative Action in South Africa (LexisNexis Durban 2003)
Deutsch M "Equity, Equality, and Need: What Determines which Value will be Used as the Basis of Distributive Justice?" 1975 J Soc Issues 137-149
Department of Human Settlements The National Housing Code: Incremental interventions – Part 3: Emergency Housing Programme (Department of Human Settlements Pretoria 2009)
Dugard J "Modderklip Revisited: Can Courts Compel the State to Expropriate Property Where the Eviction of Unlawful Occupiers is not Just and Equitable?" 2018 PELJ 1-20
Klimchuk D "On the Autonomy of Corrective Justice" 2003 OJLS 49-64
Kotzé T Effective Relief Regarding Residential Property Following a Failure to Execute an Eviction Order (LLM-dissertation University of Stellenbosch 2016)
Kruger M "Arbitrary Deprivation of Property: An Argument for the Payment of Compensation by the State in Certain Cases of Unlawful Occupation" 2014 SALJ 328-364
Liebenberg S "The Value of Human Dignity in Interpreting Socioeconomic Rights" 2005 SAJHR 1-30
Mbazira C Litigating Socio-economic Rights in South Africa – A Choice between Corrective and Distributive Justice (Pretoria University Law Press Pretoria 2009)
Modak-Truran MC "Corrective Justice and the Revival of Judicial Virtue" 2000 Yale J L & Hum 249-298
Mostert H "Landlessness, Housing and the Rule of Law" in Mostert H and De Waal MJ (eds) Essays in Honour of CG van der Merwe (LexisNexis Durban 2011) 73-104
Muller G "Conceptualising "Meaningful Engagement" as a Deliberative Democratic Partnership" 2011 Stell LR 742-758
Muller G "On Considering Alternative Accommodation and the Rights and Needs of Vulnerable People" 2014 SAJHR 41-62
Muller G and Liebenberg S "Developing the Law of Joinder in the Context of Evictions of People from their Homes" 2013 SAJHR 554-570
Pienaar JM Land Reform (Juta Cape Town 2014)
Pope A "The Alternative Accommodation Conundrum: Trends and Patterns in Eviction Jurisprudence" 2011 Speculum Juris 134-147
Posner RA "The Concept of Corrective Justice in Recent Theories of Tort Law" 1981 JLS 187-206
Price A "State Liability and Accountability" 2015 Acta Juridica 313-335
Rawls J A Theory of Justice (Belknap Press of Harvard University Press Cambridge 1999)
Roach K "The Limits of Corrective Justice and the Potential of Equity in Constitutional Remedies" 1991 Arizona L Rev 859-905
Roach K and Budlender G "Mandatory Relief and Supervisory Jurisdiction: When is it Appropriate, Just and Equitable?" 2005 SALJ 325-351
Sen A "Justice: Means versus Freedoms" 1990 Philos Public Aff 111-121
Strydom J and Viljoen S "Unlawful Occupation of Inner-city Buildings: A Constitutional Analysis of the Rights and Obligations Involved" 2014 PELJ 1207-1261
Tushnet M "The Issue of State Action/Horizontal Effect in Comparative Constitutional Law" 2003 ICON 79-98
Van der Walt AJ Constitutional Property Law 3rd ed (Juta Cape Town 2011)
Van der Walt AJ Property and Constitution (Pretoria University Law Press Pretoria 2012)
Van der Walt AJ "The State's Duty to Protect Property Owners v the State's Duty to Provide Housing: Thoughts on the Modderklip Case" 2005 SAJHR 144-161
Viljoen S "The Temporary Expropriation of a Use Right as Interim Measure in the South African Housing Context (Part 1)" 2014 TSAR 359-376
Viljoen S "The Temporary Expropriation of a Use Right as Interim Measure in the South African Housing Context (Part 2)" 2014 TSAR 520-535
Viljoen S "The Systemic Violation of Section 26(1): An Appeal for Structural Relief by the Judiciary" 2015 SAPL 42-70
Viljoen S and Makama SP "Structural Relief – A Context-sensitive Approach" 2018 SAJHR 209-230
Wagstaff GF "Equity, Equality, and Need: Three Principles of Justice or One? An Analysis of 'Equity as Desert'" 1994 Curr Psychol 138-152
Weinrib EJ "Corrective Justice in a Nutshell" 2002 UTLJ 349-356
Wilson S "Breaking the Tie: Evictions from Private Land, Homelessness and a New Normality" 2009 SALJ 270-290
Wilson S "Planning for Inclusion in South Africa: The State's Duty to Prevent Homelessness and the Potential of 'Meaningful Engagement'" 2011 Urban Forum 265-282
Case law
Absa Bank Bpk v Murray 2003 ZAWCHC 48 (18 September 2003)
Arendse v Arendse 2013 3 SA 347 (WCC)
City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 6 SA 294 (SCA)
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC)
City of Johannesburg Metropolitan Municipality v Hlophe 2015 2 All SA 251 (SCA)
Coppermoon Trading 203 (Pty) Ltd v The Persons whose Identities are to the Applicant Unknown and Unlawfully Occupy Remainder Erf 148, Phillipi, Cape Town (SCA) (unreported) case number 653/18, 701/18, 821/18, 708/18 of 4 March 2020
Ekurhuleni Metropolitan Municipality v Dada 2009 4 SA 463 (SCA)
Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupy Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC)
First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)
Fose v Minister of Safety and Security 1997 3 SA 786 (CC)
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)
Grobler v Msimanga 2008 3 All SA 549 (W)
Khosa v Minister of Social Development 2004 6 SA 505 (CC)
MEC for the Department of Welfare v Kate 2006 4 SA 478 (SCA)
Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC)
Mkontwana v Nelson Mandela Metropolitan Municipality 2005 1 SA 530 (CC)
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 3 SA 208 (CC)
Occupiers of Erven 87 and 88 Berea v De Wet 2017 5 SA 346 (CC)
Occupiers of Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd 2012 4 BCLR 382 (CC)
Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 3 SA 454 (CC)
Sailing Queen Investments v The Occupants La Colleen Court 2008 6 BCLR 666 (W)
Legislation
Constitution of the Republic of South Africa, 1996
Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998
Promotion of Administrative Justice Act 3 of 2000
Published
Issue
Section
License
.png){kind=spacer}