Section 26(3) of the Constitution determines 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“. Although the courts certainly have the power to issue an interdict to prevent illegal occupation of land, the eviction of dwellers from such property must be done in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the Act). As such, in order to evict illegal dwellers, certain legal requirements in terms of the Act must be fulfilled. The Act states that a court may not grant an eviction order unless the eviction sought would be just and equitable in the circumstances. This means that the court should consider other factors such as whether the occupiers include vulnerable categories of people (such as the elderly, children and female-headed households), the length of the occupation and the availability of alternative accommodation or the state provision of alternative accommodation where occupiers are unable to obtain alternative accommodation themselves.

SANRAL reportedly did not proceed in terms of the Act, but rather obtained an interdict on 24 January 2014 to prevent the continued occupation of the land and to allow the demolition of any illegal structures on the land (two days after the City of Cape Town informed SANRAL that it had 14 days to clear the land of illegal structures for health and safety reasons). This order was a rule nisi extended to 17 March. The order, however, appears to be in conflict with the Act in that it apparently fails to take into consideration justice and equity: first, it fails to cite alternative accommodation; secondly, the order appears to pay no attention to the personal circumstances of the occupiers; and thirdly, it fails to reflect on any form of engagement amongst the parties. Moreover, the City of Cape Town was not cited in the proceedings – which is a procedural requirement in eviction proceedings that lead to homelessness. In this regard, the High Court, in granting the interdict, may not have weighed justice and equity in a manner required by both the Constitution and the Act, resulting in the eviction of the occupiers by SANRAL arguably falling short of constitutional muster and the Act and therefore violating section 26(3) of the Constitution.

In the PE Municipality-case, the Constitutional Court stated that the courts must be fully informed of all the relevant circumstances before deciding whether an eviction would be just and equitable. The Court also held that there has to have been meaningful engagement with all the parties concerned – engaging proactively and honestly to find mutually acceptable solutions. With the City of Cape Town and SANRAL accusing each other of walking away from discussions, it is difficult to see how the parties could have engaged in a meaningful manner.

However, occupying land illegally in itself cannot be condoned. Section 25 of the Constitution provides that property owners may not be deprived of their property, or the use thereof, except in terms of laws of general application – neither by the state nor by individuals. Nonetheless, the state, in terms of section 26, has a constitutional duty to provide adequate housing within its means. This much has been confirmed by the Constitutional Court in the Grootboom-case. The fact that individuals are hence illegally occupying property may well be the result of a failure by the state to, diligently and without delay, provide such housing as required by the Constitution. Be that as it may, poverty and inequality remain a reality in South Africa, affecting the very fibre of society. As such, the Constitution and the Constitutional Court recognise the need for social justice based on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. In such a society, forcefully evicting people – arguably illegally so – in the middle of a Cape Town winter without considering the human implications and without proactively providing for any alternative interim accommodation cannot be justified – whether in terms of the Constitution or moral conscience.

Issued by The Centre for Constitutional Rights
5 June 2014

Photo credit: John Charalambous / Foter /Creative Commons Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)


Ms Phephelapi Dube, Legal Officer: Centre for Constitutional Rights

Adv Johan Kruger, Director: Centre for Constitutional Rights

Telephone: 021 930 3622