The illegal eviction of undocumented foreigners from South Africa

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.