The provision of housing is a complex process ridden with a plethora of compliances, financial undertakings, contractual arrangements, and finally stringent timelines that are often extended and amended. In recent years, much emphasis has been placed on redesigning the housing system, but such redesign also came with challenges.

While plans must be made to provide housing, municipalities are also responsible for protecting their land from illegal invasion. The courts are confronted daily with eviction applications where the question of alternative accommodation must be clarified before an eviction order can be granted. It is often clear from the affidavits of the municipalities concerned that the housing crisis is a protracted struggle and that an immediate solution is not possible.

Competing rights

Municipalities are overburdened with the obligations of service delivery.  This means that many municipalities may not have the resources to secure municipal land through fencing or security, for instance. This makes municipal land vulnerable to land invasions, which often take place in one night. These illegal activities are done systematically over a period, and in a manner that is well orchestrated. They adversely impact municipal plans for development. This leads to the question “What can be done to ensure that this resource is protected until the land is fully developed?’

Section 26(1) of the 1996 Constitution, states that “everyone has a right to adequate housing. Section 26(2), strengthens this right by requesting the state to “take reasonable, legislative and other measures, within its available resources, to achieve the progressive realisation of this right”. 

As municipalities roll out their housing plans, land invasions occur daily. It is against this backdrop that I ask - has there been enough legislative reform to support municipalities in protecting their land, whilst housing plans are being developed?

While section 26(3) of the Constitution states that no legislation may permit arbitrary evictions,  section 26(2) additionally states that “[t]he state may take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right” (this right being the right to housing). Therefore,  in cases involving illegal invasions, the question is where is the protection for municipalities as landowners?

In some municipalities, inefficiencies in housing programmes and the subsequent collapse of the system have resulted in violent protests or long-drawn-out court battles where eventually, even courts do not have a remedy for financially ailing municipalities.  In many municipalities across the country, it would therefore seem, that land invasion, has become the order of the day, placing much-needed housing projects in jeopardy.

The allocation of land by traditional authorities

In rural and peri-urban areas of the country, land invasions cause disputes between traditional authorities and municipalities, as discussed in the Bulletin. Some traditional leaders see land allocation as a "quick business". They invade vacant municipal land and sell housing sites to interested persons, pocketing the money from the sale. As illegal as this practice is, it has become a norm across the country. This has contributed to the collapse of municipal housing programmes.

Public participation meetings held by councillors and municipal administration to bring stakeholders together, to create awareness, and to point out municipal and traditional land boundaries often go unheard. Instead, the issue becomes more contentious and is turned into an issue of land ownership by traditional authorities, some of whom, refuse to acknowledge the boundaries and, therefore, continue with the practice selling of municipal land claiming it to be their own.  

Dysfunctional relationships are created amongst community members where one traditional leader gives (sells) the same piece of land to different individuals who are desperate for housing. This contributes to the challenges municipalities experience when they implement housing programs.

Urbanisation

The urgency of housing is further exacerbated by rapid urbanisation. There is a significant influx of people into cities and towns in search of economic opportunities and the hope of a better life. This influx often causes strain on the municipal infrastructure. Because local government is the sphere of government closest to the people, municipalities are left with no choice but to meet the needs of this ever-expanding population. Given their limited resources, municipalities often fail to meet the needs of their communities, including those relating to housing. Hence, the rise of land invasions which municipalities are dealing with regularly. Legislation aimed at promoting the progressive realisation of the right to housing compels municipalities to provide alternative emergency accommodation in cases of evictions. As evictions are conflictual in their very nature, municipalities are often caught in costly protracted legal battles. This and other developments divert municipalities from the core business such as the delivery of housing.

City of Cape Town V South African Human Rights Commission and Others

In City of Cape Town v South African Human Rights Commission and Others, the court reverted to the common law spoliation order as a response to land invasion. This case dealt with three related questions:

1. whether a municipality can get a spoliation order when landless people invade unoccupied municipal land?
2. when can a spoliation order be granted to a municipality without court supervision?
3. at what point can a municipality “legally” intervene in the demolition of illegal structures on its land?

In this case, the court ruled that:

“…. If a homeless person enters unoccupied land of a municipality with its intention to occupy it, the municipality may counter spoliate before the person has put any poles, lines, corrugated iron sheets or any similar structure with or without furniture, which point to effective physical control of the property occupied. If the municipality does not act immediately (instanter) before the stage of control with the required intention is achieved, then it cannot rely on counter spoliation as it cannot take the law into its own hands”

This decision will have far-reaching consequences in the application of spoliation orders and the safeguarding of municipal land from invasions. It is submitted that what amounts to instanter is dependent on the situation at hand. There are instances wherein given the vast nodal points of municipalities, the invasion is unknown immediately. It is thus important to ask the question whether the law will support the putting up of structures unlawfully on municipal land. Further, it should not be expected that an act of placing poles or iron sheets will constitute an act of peaceful and undisturbed possession thereafter triggering that the landowner’s only right of recourse is a court process.

In the matter of Fischer vs Ramahlele 2014 (4) SA 614, the Supreme Court of Appeal, in its finding of what constitutes physical possession used the concept of “sufficiently stable and durable” for the law to take cognisance of it. Consequently, stable and durable in the context of land invasion means occupation, as the structures that are put up are not subject to any design or planning but can be put up in a short space of time, using readily available material, that can be secured easily.

In conclusion, the rights of landowners, such as municipalities, are increasingly getting submerged in the complexities of land grabbing. The City of Cape Town v South African Human Rights Commission and Others judgment presents challenges for municipalities to retain control of their land. In practice, land invasions continue to stifle the progressive and systematic development of housing projects.  The time is ripe for Parliament to intervene legislatively and create more obligations for the national and provincial governments to, among other things, strengthen local government and enable municipalities to retain control of their land, which can be developed to ensure the progressive realisation of the right to housing.

By Adv Naritha Panday, Head of Legal, City of uMhlathuze (writing in her personal capacity)