Despatch Municipality v Sunridge Estate and Development Corporation (Pty) Ltd 1997 (8) BCLR 1023 (SE)

Housing-Land invasions- question as to what respective duties landowners and municipalities incur in the context of the eviction of unlawful occupiers from privately owned land. Right not be evicted without an order of court in terms of S 26(3) of the Constitution of South Africa- Constitutionality of section 3B of the Prevention Of Illegal Squatting Act 52 of 1951 which entitles landowners to demolish structures erected on their land without an order of court where the said structures were erected in the absence of prior consent.

The respondents in this case owned vacant land that fell within the jurisdiction of the Municipality. Unlawful occupiers settled on this land and subsequently erected structures without the prior consent of the owners. The Municipality then requested the respondents to take the appropriate steps to remove the unlawful occupiers from the land. The respondents subsequently served notice on the unlawful occupiers to vacate the land. In the absence of proactive measures to stem the influx of occupiers onto the land however, the informal settlement continued to grow at an alarming pace much to the concern of the Municipality and residents in neighboring areas.

In an attempt to resolve the matter, the respondents entered into negotiations with the unlawful occupiers to sell the land to them. These negotiations were however unsuccessful, and the problem persisted while the size of the community continued to expand. The municipality then approached the Court and a rule nisi was issued against the respondents to show cause as to why it should not be interdicted from permitting the further erection of buildings on the land, and why it should not be ordered to stop the nuisance caused by the unlawful occupation of the informal settlers.

The contentious issue before the court centred on whether it was the duty of the respondent or the applicant to prevent the further influx of unlawful occupiers. The applicant relied on Sections 3A and 3B of the Prevention of Illegal Squatting an Act 52 of 1951 (PISA). Section 3A prohibits landowners from permitting the erection of structures on the land where no prior approval was sought from the municipality, while section 3B entitles the owner, in the absence of an order of court, to demolish structures on the land which were erected without prior consent.

The respondents argued however that the applicant had an alternate remedy in terms of the National Building Regulations and Building Standards Act, which 'renders it an offence to erect any building in the areas of administration of the local authority where such buildings did not meet the requisite standards set out in the Act'.

The Court held that while the provisions of the aforementioned Act did confer certain powers on the municipality, they did not nullify the obligations that PISA placed on landowners that included amongst others, the duty to take necessary steps to prevent the construction of further illegal structures on their land. The National Building Regulations Standards Act was also primarily aimed at regulating the activities of landowners whereas PISA was directed at controlling the problem of unlawful occupation of land.

Importantly the Court in examining the power conferred by section 3B of PISA to demolish illegal structures on private land without an order of court, held that it was in contravention of section 26(3) of the Constitution. Section 26 (3) contains the prohibition against evictions without an order of court made after considering all the relevant circumstances.

The court in finding that the respondents had not fulfilled its obligations to prevent the further influx of unlawful occupiers onto its land, confirmed the rule nisi in an amended form.