Reconsidering counter-spoliation as a common-law remedy in the eviction context in view of the single system-of-law principle

Abstract

After 25 years of democracy, landlessness remains a major problem in South Africa, as millions of people still do not have access to adequate housing. This inevitably causes persons, who act either out of necessity or, sometimes, for more questionable reasons (such as to make political statements), to occupy the land of others (see, for instance, https://ewn.co.za/Topic/Illegal-land-invasions (28-08-2019)). Despite the desperate plight of these persons, and the motivations behind these intrusions, the law cannot (and does not) condone such conduct (s 3 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998). If land occupations are not properly addressed, they hold several dangers. These include undermining the rule of law (s 1(c) of the Constitution of the Republic of South Africa, 1996) through subverting public order (Cramer and Mostert “‘Home’ and unlawful occupation: the horns of local government’s dilemma: Fischer v Persons Unknown 2014 3 SA 291 (WCC)” 2013 Stell LR 583 584; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC) par 45), infringing the right of landowners against arbitrary deprivation of their property (s 25(1) of the constitution), and (perhaps most pertinently) frustrating the state’s legitimate efforts to provide housing on a planned basis under section 26(1) of the constitution (Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) par 92). The question is therefore how best to prevent – and discourage – these occupations.