It is trite to say that land is a contentious issue in South Africa. This encompasses not only the legacy of the unjust expropriations and arbitrary evictions of the apartheid era, but also contemporary concerns as to when landowners, including state organs, are permitted to evict squatters.
Section 26(3) of the Constitution, given effect to by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), prohibits evictions without a court order. However, the balance struck between landowners and squatters is questionable. The spectre of orchestrated ‘land invasions’ is often invoked by those applying for eviction orders in court. Many argue that this marginalises the interests of squatters, who are usually desperately poor with nowhere else to go.
These concerns form the backdrop to the case of Jabulani Zulu and 389 Others v eThekwini Municipality and Others, in which the Constitutional Court of South Africa handed down judgment on 6 June.
The appellants are residents of Madlala Village, an informal settlement in Durban, which occupies land allocated by eThekwini Municipality to the construction of low-cost social housing. The KwaZulu-Natal High Court (Koen J) had granted an interim order authorising the Municipality and the South African Police Service to prevent persons from occupying or building on the land and permitting them to demolish any structures constructed after the granting of the order.
As the residents were not original parties, they brought an application for leave to intervene in the proceedings on the basis that the interim order authorised their eviction without compliance with PIE. The state parties argued that the order did not affect the appellants because it was aimed at prospectively preventing land invasions. Kruger J held that PIE was not applicable and dismissed the application.
The difficult issue was whether the Constitutional Court could tackle the constitutionality of Koen J’s order given that the appeal concerned the narrow question of leave to intervene in proceedings before the High Court. All of the parties addressed this question at the hearing. In the event the majority thought not, with the Court producing three judgments and a confusing web of partial or full concurrences.
The Court unanimously held that Koen J’s order was an eviction order and that the Madlala Village residents should be granted leave to intervene. Zondo J, writing the main judgment, observed that the order was drafted sufficiently widely that it would include “continuing occupation that had commenced prior to the grant of the order.” However, he concluded that the constitutionality of the interim order was not properly before the Court and so could not be ruled upon.
Another concern was that records before the court demonstrated that Koen J’s order had been used as an eviction order both before and after the hearing before the Constitutional Court, despite the state parties’ insistence that this was not the case. While critical of this, the majority took the view that the rights of the appellants were safeguarded by an order of the High Court (per Jeffrey AJ) preventing further demolitions or evictions. It is telling that at that hearing the Municipality relied on Koen J’s order as authorising its actions.
Moseneke ACJ considered that the protection offered by Jeffrey AJ’s order meant that there were no special considerations that justified dealing with the constitutionality of Koen J’s order.
In a powerful judgment, Van der Westhuizen J disagreed. He argued that to essentially remit the matter would render the High Court proceedings “an empty and futile formality”; the main judgment had found Koen J’s order to be an eviction order, which he held to be “inevitably unlawful” as being issued in disregard of the provisions of PIE. It was necessary to establish legal certainty, as the matter before the Court “was not an isolated or unique incident” – other courts have issued similar orders The lengthy consideration given to the question of constitutionality meant that “it has effectively become the subject of the appeal.” However, only Froneman J joined him out of a bench of eleven.
Some will regard this case as a missed opportunity to rule conclusively on interim orders that appear to circumvent constitutional protections on the right to housing. Nevertheless, Van der Westhuizen J’s comments in particular may well persuade future parties to tackle the question of constitutionality head-on in order to establish a binding precedent that will help ensure the lower courts do not produce orders that may be open to abuse.