One of the challenges facing South Africa post-1994 is poverty and its associated housing problems. This leads thousands of people to occupy land or properties illegally. Disputes then arise between land and property owners seeking to evict the unlawful occupiers, and occupiers seeking to exercise their constitutional rights to housing entrenched in Section 26 of the Constitution. This section provides that:

(1) Everyone has the right to access to adequate housing.

(2) The State must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right.

(3) 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. No legislation may permit arbitrary evictions.

The right to be protected from arbitrary eviction is further upheld by various provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE Act).

One of the primary objectives of the PIE Act is to ensure that evictions take place in a manner that is consistent with the values of the Constitution. It prescribes the requirements to be satisfied before a Court may grant an order of eviction. These requirements are contained in Section 4 (6) and 4 (7):

4 (6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings [for eviction] are initiated, a Court may grant an order for eviction if it is of the opinion that it is just and equitable to do so after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

4 (7)  If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a Court may grant an order of eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other  organ of state or another land owner for the relocation of the unlawful occupier, and the rights and needs of the elderly, children, disabled persons and households headed by women.

So, South African legislation prevents land and property owners from evicting occupiers of their property simply because such occupation has been done illegally. For an eviction application to succeed, the owners must prove to the Court that such an order would be fair, especially to vulnerable people such as the elderly, disabled people, women and children, so that they will not be left homeless.

However, unlawful occupiers cannot ignore being served with a notice of eviction simply because they have rights under the constitution.

Once served with a notice of eviction, they should seek legal advice to ensure their rights are protected. The occupiers should also avoid acting in amala fidemanner when opposing the application to evict them,simply because they have constitutional rights to housing. Instead,  they should approach their municipality about the action brought against them, in an attempt to obtain emergency housing—a constitutional right—from the municipality.

Failing to do so may prompt the Court to grant the eviction order against them. This was the case in the matter ofTHE OCCUPIERS OF ERVEN 87 AND 88 BEREA VS DE WET, CHRISTIAAN FREDERICK N.O  AND PARBHOO RAYNATH N.O, CASE NO: 2013/24254.

In this case, the honourable Justice L. Adams refused to rescind an eviction order against the unlawful occupiers of the property in Berea, Johannesburg, because they had not shown that the application for rescission of the order was bona fide, and that they had a prima facie defence. Justice Adams also indicated that the unlawful occupiers had made no attempts to contact the City of Johannesburg to get their constitutional rights enforced — in particular, their rights under the PIE Act for alternative housing — even after obtaining legal representation. A judgement to evict them from the property was granted around September, 2013.