Abstract:
Over the years, from as early as the 1600s, South African law has had mechanisms in place to regulate illegal evictions and unlawful occupation of land by people who were not authorised to be in occupation of that specific land. There have been developments in terms of our law and one can observe the ever so developing and dynamic legal framework of this country. During the pre-constitutional South Africa, common law was the most preferred source of law to deal with unlawful occupation of property and as time went by, more sources of law were introduced such as legislation and customary law. In 1991 negotiations commenced that suggested that a new Constitution should be developed, which would then change the laws that were applicable at the time, by 1993 a common decision had been reached to promulgate a new Constitution. It was promulgated in 1996 and came into being in 1997, namely the Constitution that is being used in South Africa now. The Constitution has greater authority than legislation, customary law or policies as it is the supreme law of the land. In the current constitutional dispensation, South Africa has a number of statues that deal with illegal evictions and unlawful occupation of land, depending on the type of property as well as the type of land or location upon which the property is situated. The main point of reference is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and the case of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties (Pty) Ltd and Another. In this matter the court applied the PIE Act to come to a solution for both the property owners and the unlawful occupiers. The court decided that the state bears the obligation to provide housing for the unlawful occupiers as per section 26 of the Constitution, while the property owners were protected by section 25(1) of the Constitution. The court emphasized that an eviction order can only be granted if it is just and equitable to do so. In considering whether an eviction order should be granted, the court has to take into account the rights of the elderly, children, disabled persons and particularly households headed by women. Evictions should take place in a humane manner in light of the constitutional values of our country, and evictions cannot undermine the rights entrenched in the Bill of Rights. The state needs to, within its available means, make available accommodation for unlawful occupiers that are being evicted to avoid homelessness. Predominantly, the duty to accommodate and ensure adequate housing in our country rests on the Government.
