Abstract:
In Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644
Kew & Another and Tswelopele Non-Profit Organisation v City of
Tshwane Metropolitan Municipality the courts failed to provide guidance
regarding the relationship between the Prevention of Illegal Eviction from
and Unlawful Occupation of Land, the Refugees Act and the Immigration
Act. This article sets out to provide such guidance by contextualising South
Africa as a constitutional democracy with a supreme Constitution (the
principle of a single system of law) that delineates a point of departure for
establishing which source of law should regulate litigation about the
illegal eviction from one’s home (the subsidiarity principles). The authors
then overlay the principle of a single system of law and the subsidiarity
principles with the systemic characteristics of a property system that
promotes section 39(2) of the Constitution. Taken together, these
principles and characteristics are used to evaluate PIE, the Refugees Act
and the Immigration Act with a view to establishing which is the most
appropriate source of law to evict undocumented foreigners from South
Africa and to determine the appropriate relationship between the statutes.
The article further aims to evaluate the failure to consider the procedural
protection and substantive safeguards outlined in PIE, which ultimately
perpetuates, or even exacerbates, the vulnerable position of
undocumented foreigners who are forced from their homes.
