Empolweni Khayelitsha, Western Cape Evictions. Photo: Supplied
On 1 July 2020, Bulelani Qolani was dragged out of his home in Ethembeni informal settlement, naked and in full view of his neighbours, as part of an eviction, without a court order, by the City of Cape Town metro police and members of the city’s anti-land invasion unit.
This event was much publicised, but too often people are unlawfully evicted outside of public scrutiny, while the law that protects them is attacked.
The Prevention of Illegal Eviction from an Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) protects the rights of people who have no legal right to the land on which they reside. Although protecting the rights of unlawful occupiers appears counter-intuitive, the aim is a transformative interpretation of the law that balances the rights of property owners with those who may have other claims to the land.
The Act is fundamental to South Africa’s constitutional democracy and gives effect to section 26(3) of the Constitution. It deals directly with the realities of dispossession, landlessness and apartheid spatial planning, which continue to undermine the dignity of poor, marginalised and vulnerable households.
Both section 26(3) and the Act are direct responses to the apartheid legal framework which, outside the use of their labour, reserved only 13% of land for black people and criminalised their presence in urban areas. It further ensured that for most of the country’s population, ownership of a home, and the safety and security that comes with it, was an unachievable goal as it restricted both ownership and occupation.
The continuing inequality in land access and land holdings is reflected in the 2017 Land Audit Report by the department of rural development and land reform, which found that white people still own 72% of farms and agricultural holdings and 49% of erven.
The Act responds to this legacy by repealing the Prevention of Illegal Squatting Act 52 of 1951, decriminalising unlawful occupation and simplifying eviction procedures. The importance of the PIE Act lies in its disruption of apartheid-era reservation and regulation of property.
For any eviction to be lawful, it must be authorised by a court order. The Act sets out the procedure and factors to consider before an eviction order is granted. The landowner bears the burden of proving that the eviction is “just and equitable” as opposed to the unlawful occupier proving the legal basis of their unlawful occupation.
The Act requires that the court decides, bearing in mind the values of the Constitution in upholding and enforcing land rights, whether it is appropriate to issue an order which has the effect of depriving occupiers of their homes. In instances where homelessness might ensue, the municipality is obliged to provide temporary emergency accommodation.
Despite its importance, there have been several attempts to undermine the Act and its protection of the landless. These include the use of anti-land invasion units by several municipalities and two amendment Bills — one in 2006 that has stalled and a more recent 2022 private member’s Bill that was circulated for public comment in October 2022.
We highlight three areas of regression in protections against arbitrary evictions. The first is proposed limitations on who the PIE Act applies to. The PIE Act is an act of last resort and already does not apply to individuals provided for under the Extension of Security of Tenure Act 62 of 1997 and the Interim Protection of Informal Land Rights Act 31 of 1996.
Both the 2006 and 2022 Bills sought to limit the PIE Act’s application. In 2006, the amendment sought to exclude persons whose tenancy or agreement had been validly terminated but continued to occupy the land in question because they had nowhere else to go, while the 2022 amendment proposes the introduction of an income threshold, which will probably result in the exclusion of an undetermined number of people from justice, or even to court processes in eviction proceedings.
A second area of regression concerns attempts to circumvent court processes. As in Qolani’s case, anti-land invasion units are used to effect evictions in this way. The point of contention here is what it means for someone to possess land — in other words at what point is a court order needed to evict someone from land?
Is obtaining a court order unnecessary if a person hasn’t lived there long, or is it only needed if a shack has been erected? In 2022 the Western Cape high court in South African Human Rights Commission v The City of Cape Town declared that once someone is present on land with the intent to construct a shack and shows that intent by beginning to erect a structure, they are in possession and a court order is required to remove them.
A final area of regression concerns the obligation that municipalities must provide temporary emergency accommodation to occupiers if eviction will result in homelessness. The 2022 Bill proposes that a court order stipulates for how long alternative accommodation is provided.
Ideally, alternative accommodation should be temporary but adding a definite end date ignores the vulnerability that people face. Termination of temporary accommodation that results in homelessness would, in turn, constitute an eviction.
It would also be a violation of sections 26(1) and 26(3) of the Constitution, which places a negative obligation on the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing, and prohibits evictions that lead to homelessness, respectively.
Any discussion of evictions should be cognisant of the legacy of historic dispossession. Instead of confounding the PIE Act, the focus should turn to address the lack of urban land reform, housing provision and unaffordability that are contributing factors to occupation. As the Constitutional court ruled in 2005 in Port Elizabeth Municipality v Various Occupiers, “It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned.”
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.