Uitenhage Local Transitional Council v Zenza and Others 1997 (8) BCLR 1115 (SE)

Administrative law- Public authorities seeking the eviction of unlawful occupiers from their land have the same rights as ordinary citizens who are landowners. -Right of access to housing- Section 26(3) of the Constitution, right not to be evicted without an order of court after considering all the relevant circumstances.

The respondents in this case had unlawfully occupied vacant land that fell within the applicant's jurisdiction. The land in question had been earmarked for a housing project that could not be instituted while the occupiers remained in occupation thereof. Some of the respondents had moved onto the land as a result of flooding in the area that they had previously occupied, while others had moved onto to the land as a result of forced removals perpetrated by the previous government.

The applicant requested the court to confirm a rule nisi previously issued, calling on the respondents to show why an order should not be made interdicting them from continuing their unlawful occupation and forcing them to remove the illegal structures that they had erected on the land.

Counsel for the respondents argued that they were entitled to a hearing before eviction proceedings were instituted, as the decision taken to evict the occupiers was open to review. The Court held that the action of the applicant as a public authority seeking an eviction order against the occupiers did not constitute an administrative action, and was therefore not open to review. It furthermore stated that the applicant has the same rights as that of ordinary citizens who are landowners, which therefore includes the right to institute eviction proceedings against unlawful occupiers.

Counsel for the respondents argued that in terms of S 25 (7) of the Constitution those unlawful occupiers who had been dispossessed of their land as a result of 'racially discriminatory laws... were entitled to restitution of their property or equitable redress.'

The Court held that S 25 (7) did not entitle the respondents to take the law into their own hands, and their occupation of the land in question was therefore illegal.

Counsel also raised the argument that S 26 (3) of the Constitution enjoined the Court to consider all 'relevant circumstances' before issuing an eviction order. This was in support of the fact that some of the respondents had moved onto the land out of necessity after being displaced by flooding, and therefore could not return to their previous homes.

The Court held that the relevant circumstances to be taken into account were that the respondents had been uncooperative with the applicant in trying to reach a solution to the problem and had ignored the applicant's ownership rights. Furthermore, there was land available to which the respondents could relocate if they chose to. The applicant in addition, had a waiting list of 8000 families for whom housing was to be provided and the respondents could therefore not be allowed to take the law into their own hands and disrupt the orderly provision of housing within the applicant's jurisdiction.

The rule nisi was therefore confirmed in respect of the main relief sought.