Eviction orders from private land: A case for convenient deference

Abstract

Before the Constitution of the Republic of South Africa, 1996, imposed a new and equally important right not to be arbitrarily deprived, the relationship between those who have and those who do not have title to land was founded on a tradition that gave a private owner the unrestricted right to exclude all others through the rei vindicatio. The Constitutional era favours an approach that promotes balance between ownership and non-ownership interests at points where these interests intersect. Evidence of this shift in approach is most prominent in eviction cases. In addition to
the pre-constitutional requirement that evictions be authorised by a court of law, the implementation of the “just and equitable” measure increased the court’s involvement in evictions in South Africa. Key to this article are the three different forms of eviction orders that can be linked to the exercise of the “just and equitable” measure. First, instances in which the courts grant an eviction application and then suspend the order, enabling unlawful occupiers to continue living on the land/property, while the State seeks alternative land to resettle the occupiers. Secondly, instances in which a court grants
an eviction order but, for whatever reason, enforcement becomes impracticable, resulting in unlawful occupants remaining on private property that belongs to someone else. Thirdly, instances where a court denies an eviction  application, enabling unlawful occupiers to indefinitely remain on land that belongs to someone else. This article explores the court’s approach to the modalities of remaining on land as a consequence of the third type of order. In particular, it investigates the court’s failure to address the legitimacy of this identified fact of remaining on land belonging to another against the plausible counterargument of the need for adherence to the separation-of-powers doctrine.