OPINION | The plight of unlawful evictions in South Africa

Bulelani Qolani and his family.
Bulelani Qolani and his family.
Amy Gibbings, News24

The issue of land redistribution needs to be dealt with in order to resolve the issue of unlawful evictions, writes Lucky Makhubela.

The Socio-Economic Rights Institute of South Africa (SERI) says more than 800 evictions have taken place since the country entered lockdown.

Recently, a video of a man from Khayelitsha went viral on social media. He has been identified as Bulelani Qolani. It showed the Cape Town Anti-Land Invasion Unit officials violently dragging the naked man out of his shack. Similar scenes of shacks and houses being destroyed by the Red Ants in Enerdale were broadcast and reported during Level 5 lockdown.

The Prevention of Illegal Eviction (PIE) Act stipulates that no person may be evicted without a court order. Further, no evictions are permitted under lockdown Levels 5-3. In both cases, the land is owned by the state, and earmarked for the installation of services to serve the broader community and housing development. These evictions have been contested by the South African Human Rights Commission, political parties and the affected communities. 

PIE applies to all land throughout the Republic of South Africa, unless the Extension of Security of Tenure Act (ESTA) applies. The PIE Act makes the distinction between an eviction from a residential property or an eviction from a commercial property. ESTA deals with the eviction of lawful occupiers or occupiers of rural or peri-urban land, whose occupation was previously lawful, such as land that has been designated for agricultural purposes.

The Constitution and human dignity

The law prescribes that the evictor must first serve the evictee with a notice to vacate the property and explain the grounds upon which they want to evict - i.e if the person is illegally occupying the property. This needs to be done within a reasonable time frame; even so, there is debate about how much time is reasonable. However, when the time expires, the evictor must notify the local council of their intention to evict. The evictor has a constitutional obligation to make sure that there is alternative accommodation provided to the people who are being evicted.

The legislation that regulates eviction must be in line with what the Constitution provides. There are different values that our Constitution enshrines, but one of the most important speaks to the value of dignity. The Constitution protects a person's right to live securely, in a dignified manner, which is linked to human dignity. The incident in Khayelitsha saw Mr Qolani's rights being infringed when he was dragged in the nude out of his shack, essentially stripping him of his dignity.

Recourse actions and competing rights

Those who have been removed unlawfully or during the lockdown can and must seek legal recourse. Since the president announced a national state of disaster, a part of the regulations is that no individual can be evicted from any land in the country. However, there is another issue - during those evictions, people's property was damaged. Those who have caused these damages must pay for it. What needs to be addressed are the constitutional damages.

In a number of these eviction cases, there are two competing rights: The right of ownership of land, which is a constitutionally protected right under section 25 and states that no one can be deprived of their property rights. The other competing right is that, due to the lack of access to land, individuals end up invading the rights of other people and claim ownership on a piece of private or commercial land.

This speaks to a greater issue that has been tabled in Parliament, relating to the redistribution of land. Land has been a contentious issue in the political and public domain. The RDP housing backlog and allegations of corruption in terms of low cost housing have amplified the need for land restitution.

In order to resolve the issue of unlawful evictions and illegal dwellings, the issue of land needs to be resolved.

- Lucky Makhubela, Legal Expert and the founder of Makhubela Attorneys Inc.

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