Balancing the right to peaceful use and enjoyment of private property with the right of access to adequate housing and the government’s legitimate interest thereto.

Abstract

In the pre-constitutional dispensation, the courts could grant an eviction order without considering the risk of homelessness to the evictees. This was possible because there was no constitutional right of access to adequate housing, and there was no law obligating the government to provide alternative accommodation to vulnerable evictees. In this context, the owner’s right to peaceful use and enjoyment of private property to the exclusion of non-owners was absolute and it trumped the interests of the unlawful occupiers. Notably, this legal framework favoured historical landowners, while undermining the historical dispossession of land which in turn impacted on vulnerable evictees’ housing interests. In the new constitutional dispensation, there is a shift away from the pre-constitutional legal framework. The eviction landscape has been transformed by section 26 of the Constitution which gives everyone the right of access to adequate housing and not to be arbitrarily evicted. Section 26 further obliges the state to take all reasonable steps to realise the right of access to adequate housing. The subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) gives effect to section 26 of the Constitution. Accordingly, evictions are now qualified in terms of section 26 of the Constitution. In a situation where unlawful occupiers have no prospect of finding alternative accommodation of their own, a court may order local government to provide them with temporary alternative accommodation. Therefore, in the new constitutional dispensation the government has a constitutional duty to provide alternative accommodation to vulnerable evictees. Notably, the government has a central legitimate interest in evictions. To the extent that the government cannot provide alternative accommodation, a court may refuse to grant an eviction order or may suspend it until the government makes such provision. This new development aims to infuse the principles of justice and equity into South African eviction law by balancing and reconciling the landowners’ interests with those of the unlawful occupiers. However, this transformative development is hindered by the government’s failure to play its central role, in the sense that if the government fails to provide alternative accommodation or provides an inadequate form of alternative accommodation the eviction will be refused or delayed. As a result, the landowners’ property rights and the unlawful occupiers’ housing rights will be compromised. Ultimately, the courts’ balancing approach will be hampered. Therefore, this study indicates that the government has failed to play its central role in evictions. As such, balancing the landowners and the unlawful occupiers’ opposed interests in the context of eviction is a complex exercise. The study concludes that it is impossible to balance the relevant rights without the meaningful involvement of government.