Eviction is not simply a dispute about who owns a property. It can also determine whether people have somewhere to sleep once they leave. For that reason, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be read together with section 26 of the Constitution. Section 26(3) makes it clear that no one may be evicted without a court order granted after all relevant circumstances have been considered. A property owner must therefore prove more than ownership and unlawful occupation. The court must also be satisfied that granting the eviction, and deciding when it will take effect is just and equitable.

The PIE framework

Sections 4(7) and 4(8) of PIE apply when unlawful occupiers have lived on the land for more than six months by the time eviction proceedings begin. Section 4(7) allows a court to grant eviction only after considering all relevant circumstances and finding that the result would be just and equitable. If the court grants the order, section 4(8) then requires it to choose fair dates for the occupiers to leave and for the order to be enforced. The court must balance the owner’s property rights against the occupiers’ rights to housing and dignity, as well as the real harm that homelessness may cause.

Local government’s obligation to provide alternative accommodation

If an eviction is likely to leave people homeless, the municipality cannot remain on the sidelines. It must take part in the proceedings and give the court reliable, practical information about available alternative accommodation. This does not give every unlawful occupier an immediate right to permanent housing in a preferred area. It does mean that the municipality must respond reasonably to the emergency, which may require temporary shelter and access to basic services.

This responsibility flows from section 26(2) of the Constitution and is reinforced by the Housing Act 107 of 1997, the National Housing Code and the Local Government: Municipal Systems Act 32 of 2000. In practical terms, municipalities must plan and budget for emergency housing, identify suitable land or buildings, coordinate housing development and ask the province for assistance when necessary. A lack of provincial funding does not erase the municipality’s own constitutional and statutory duties. A reasonable housing programme should anticipate the possibility of eviction-related homelessness instead of waiting until families are already without shelter.

Factors a court must consider

The court’s guiding question is whether eviction would be just and equitable in the particular circumstances. There is no single checklist that produces an automatic answer. The court must consider how long the occupiers have lived on the property, how and why they came to be there, and their personal circumstances. Special attention must be given to children, older persons, persons with disabilities and households headed by women. The court must also consider the likelihood and consequences of homelessness; whether suitable alternative accommodation is genuinely available and when it can be provided; what plans, resources and practical steps the municipality has put in place; the owner’s rights and the prejudice caused by continued occupation; and whether the parties have engaged meaningfully. In some cases, fairness may require the eviction to be delayed, carried out in stages or made subject to conditions that reduce the risk of homelessness.

Meaningful engagement and judicial supervision

Meaningful engagement gives the people affected by an eviction a voice in a process that may profoundly disrupt their lives. As recognised in the judgement of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street v City of Johannesburg, which involved more than 400 inner-city residents, the municipality should speak openly and in good faith with occupiers, understand their individual circumstances, explain the options that  are realistically available and look for ways to reduce the harm caused by displacement. A court may require a detailed municipal report, join the municipality to the case, supervise compliance or make the eviction date dependent on suitable alternative accommodation being provided. The municipality must offer facts and workable solutions. General promises or unsupported statements that resources are unavailable will not be enough.

Conclusion

PIE recognises that eviction affects both property rights and people’s lives. It is therefore a carefully supervised legal process, not an automatic response to unlawful occupation. Where an eviction may cause homelessness, local government must investigate the occupiers’ needs, engage with them honestly, give the court clear information, plan and budget for emergencies, and make reasonable provision for suitable temporary accommodation. The final order must balance the interests of everyone involved and ensure that the decision, its timing and the way it is carried out are genuinely just and equitable.

TO HAVE AND TO HOLD ON TO: THE RIGHTS OF AN OCCUPIER