The 2021 local government elections have once again cast a spotlight on the lived conditions of many South Africans. Based on 2011 census data, conservatively, between 1.1 and 1.4 million households (between 2.9 and 3.6 million people) in South Africa live in conditions characterised by the lack of adequate, affordable housing, the threat of unlawful eviction, and overcrowding.

The persistence of occupation in informal settlements and inner city buildings is perhaps one of the more obvious examples of how little progress has been made towards a more equal and inclusive society. It is demonstrative of the state’s failure and the market’s inability to provide poor households with formal affordable accommodation options in well-located areas. This reality is further entrenched by the eviction, frequently unlawful, of poor residents from their homes either by government or private interests, with the support of government.

Evictions that lead to homelessness are in direct conflict with the right of access to adequate housing as envisioned in the Constitution and further contribute to long-term tenure insecurity. A lack of tenure security and the threat of evictions is the unfortunate reality of many in the country who live informally because they have nowhere else to go.

Informal settlement residents and inner city occupiers employ multiple strategies to protect themselves against unlawful eviction and to improve their living conditions. Use of the courts to enforce their constitutional rights to housing is one of these, while protest, engaging the state and participating in invited and invented political spaces are among others. Litigation is generally an option of last resort and depends on access to public interest legal services, recourse available to few people.

The right of access to adequate housing has been one of the most-often litigated socio- economic rights in South African, leading to a wealth of jurisprudence in respect of housing and eviction law. The sheer volume of litigation has meant that the law in relation to the right to housing, evictions and alternative accommodation is evolving as the South African courts incrementally and progressively develop the right.

Section 26(3) establishes that “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” and that “no legislation may permit arbitrary evictions.” The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) gives effect to section 26(3), requiring that an eviction must be just and equitable. Years of litigation and a host of progressive judgments mean that a significant body of case law has developed in relation to evictions and a set of legal principles about evictions and alternative accommodation now exist, including procedures for lawful eviction, alternative accommodation provision and meaningful engagement.

In practice however, the state has not proactively responded to the obligations laid down in case law. Instead, municipalities deploy anti-land invasion units in response to occupation, use counter-spoliation and interdicts and pursue trespass charges against occupiers.

Counter-spoliation is a common law rule, imported to South Africa from the law of Holland as it stood in the seventeen century, which permits a person who is in the process of having their property interfered with, to defend their property with force. It is a remedy that private parties can use. The doctrine of counter-spoliation is a colonial imposition and is not a remedy that governments have historically relied upon. It is inappropriate to apply the doctrine in a modern constitutional state which is concerned with ensuring that the poor and vulnerable are treated with care and concern, and that everyone has somewhere to live.

The courts have declared the use of land occupation interdicts to automatically evict people who move onto land because they have nowhere else to go to be unlawful. The High Court and Constitutional Court decisions in the Zulu case declare interdicts to be unlawful evictions. The Constitutional Court has also disapproved of the use of summary eviction in response to new land occupations in Grootboom. The use of interdicts is unlawful because interdicts against indefinite and unascertainable class of people (as is generally the case in land occupations) cannot be granted.

In light of the Blue Moonlight judgment, municipalities are obliged to budget for all categories of persons in desperate or emergency need of housing and, if necessary, municipalities must leverage provincial and/or national funding to do so. The National Department of Human Settlements developed the Emergency Housing Programme (EHP) in direct response to Grootboom, yet municipalities report finding it difficult, if not impossible, to obtain provincial approval for their EHP funding applications. As a result, metropolitan municipalities must often rely on their own sources of finance in response to court orders directing them to provide alternative accommodation when an eviction order is granted. Frequently, municipalities respond that they do not have alternative accommodation for people who would be rendered homeless by an eviction. Protracted litigation can result, as occupiers use the courts to realise their right to housing. Unblocking municipal access to the EHP should be a priority.

A departure from a regime of evictions to a more proactive and planned approach to homelessness is important in realising a more just and equitable society. A shared understanding between state and civil society about the legal requirements and the rationale behind them is key to this ideal.

Written by the Socio-Economic Rights Institute of South Africa (SERI)

References

• SERI, “Evictions and Alternative Accommodation in South Africa 2000-2016: An Analysis of the Jurisprudence and Implications for Local Government”, SERI Research Report (March 2016), available at https://www.seri-sa.org/images/Jurisprudence_Revised2016Finaltoprint.pdf
• SERI “ Policy Brief: Adequate Temporary Alternative Accommodation” , SERI Policy Brief (July 2020), available at https://www.seri-sa.org/images/Policybrief2AAFinal.pdf
• SERI “Urban Tenure Security: A Proposed Approach to Urban Land Tenure Reform” (2021) Nelson Mandela Foundation Working Paper, available at https://www.seri-sa.org/images/NMF-UrbanTenureSecurity-050721.pdf
• SERI “Urban Land Redistribution: A Proposed Approach to Equitable Access to Land” (2021) Nelson Mandela Foundation Working Paper, available at https://www.seri-sa.org/images/NMF-UrbanLand_Redistribution-050721.pdf