As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
“Legal interpretation,” wrote the late Robert Cover from Yale Law School back in 1986, “takes place in a field of pain and death”, because acts of legal interpretation often impose violence upon others. So, when a court orders the eviction of penniless people from their makeshift homes, it uses the violence of the law to rob them of their dignity, turning them into potential criminals in the process. At night many homeless people are forced to break the law when they have to trespass on private property if they were to grab even a few hours of fitful sleep, often in the cold and the rain. Property rights, so it seems, are indeed invoked against the vulnerable and marginalised “in a field of pain and death”.
It is for this very reason that section 26(3) of the Constitution limits property rights by prohibiting anyone – including a municipality – from evicting someone from their home, or having their home demolished, without an order of court made after considering all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) gives effect to this right, but extends the right to protect all those who unlawfully occupy not only homes but also land. An unlawful occupier protected by PIE (and who can therefore not be evicted from either land or home without a court order) is defined as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. In South Africa, only a court can order the eviction of any human being from either land or from a home.
On Wednesday 1 May 2013, the City of Cape Town’s so called “Anti-Land Invasion Unit” (a name harking back to the forced removals of the Apartheid era), acting like vigilantes, demolished the homes of 125 people who had unlawfully occupied land in Philippi on the outskirts of the city. At first the city claimed that this demolition and eviction was done in accordance with the imaginary “Protection of the Possession of Property Act”. There is no such Act on the statute books in South Africa: the city had lied about its existence and about having legal backing for its eviction without obtaining a court order. After the City was caught out in this lie, it provided another justification for the unlawful eviction.
The City, enthusiastically inventing a legal argument – “in a field of pain and death” – to justify its unlawful actions, invoked the common law notion of “counter-spoliation” which, it argued, allowed a landowner to resist illegal attempts to disturb their possession without obtaining a court order. Counter spoliation allows someone to retake possession of his or her property before the person has actually been deprived of that property. For example, if a thief snatches your bag in the street and you trip the thief and take back the bag you can invoke the principle of counter spoliation. However, you cannot go to the thief’s house later that day and snatch back your bag. That would constitute an unlawful instance of vigilantism.
The City claimed that the structures were not occupied (although pictures of the evictions suggest this is not true as the personal belongings – including furniture and clothes – can clearly be seen inside the houses) and that the “Anti-Land Invasion Unit” was entitled to “continue to dismantle illegally built structures every time they are erected and before they are occupied.” But from a legal point of view, it is entirely irrelevant whether the structures were occupied or not.
In Ndlovu v Ngcobo; Bekker and Another v Jika the Supreme Court of Appeal (SCA) made it clear that PIE applies to the eviction of (who it inhumanely called) “squatters”, whom Harms JA defined as those who “unlawfully took possession of land”. In the same judgment Olivier JA referred to “the situation where an ‘informal settler’ (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent”. In City of Cape Town v Rudolph and Others the Cape High Court correctly interpreted these statements as showing that PIE also applied to those who the City of Cape Town might call “land grabbers”.
As the PIE Act does not only protect those who occupy homes but also those who occupy land it is difficult (perhaps impossible) to see – especially in the light of the precedent of the High Court and the SCA quoted above – that even those homeless people who have settled on land and are still busy erecting informal shelters on the land they are occupying, falls outside the ambit of the protection of PIE.
This view is affirmed by the dissenting judgment in the Ndlovu case where Olivier stated that:
There seems to be general agreement that PIE applies to the situation where an informal settler (a squatter) moves onto vacant land without any right to do so and without the consent of the landowner or his or her agent. There are thousands, if not millions, of such squatters in our country. They are usually unemployed, the poorest of the poor, and live with their families in self-erected tin, cardboard or wooden shacks.
None of the reported judgments in which the application of the PIE Act was in issue proposed the interpretation put forward by the City Council that unlawful occupiers of land are only protected by the PIE Act once they erected homes and actually lived in those homes.
In the Rudolph judgment the High Court also pointed out the obvious fact that the PIE Act has now drastically curtailed the common law rules of spoliation and counter spoliation as far as property is concerned.
To hold that the common-law remedies available in our law for the eviction of unlawful occupiers exist alongside the remedies provided for in PIE, at the option of the applicant, or at all, would fundamentally undermine the overall purpose of PIE and particularly the purpose of the protections provided for therein. The idea that an owner can avoid the peremptory provisions of PIE by electing to use the common-law remedies to evict an occupier from land must be rejected.
In Port Elizabeth Municipality v Various Occupiers (Port Elizabeth Municipality) the Constitutional Court affirmed this view that the PIE Act has now extinguished many of the common law rules relating to property, stating that through the adoption of PIE:
The former objective of reinforcing common law remedies while reducing common law protections, was reversed so as to temper common law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgement of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect.
Arguing that the PIE Act now expressly requires the court “to infuse elements of grace and compassion into the formal structures of the law”, the Court in effect said that the court had to be aware of the violence inherent in the strict application of old style property rights and had to guard against the extreme effects that homelessness and dispossession would have on the dignity of those who were not lucky enough or connected enough to have a house of their own.
It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.
Of course, the PIE Act does allow the court to unleash the violence of the law on vulnerable and marginalised people who unlawfully occupy the land of others and does not prohibit a court from ordering the eviction of unlawful occupiers in certain circumstances. The capitalist system, from which us middle class citizens often benefit so handsomely, requires the law to impose some protection of property rights and the courts have to interpret and apply those legal provisions in that infamous “field of pain and death”.
But the PIE Act does prohibit the City of Cape Town’s self styled Anti-Land Invasion Unit from taking the law into its own hands – from playing God, as it were. It is not allowed to evict unlawful occupiers from land and neither is it allowed to demolish their homes unless it has obtained a court order to do so. Where a limited number of occupiers have only recently settled on private land, a court will almost always grant such an order. Where public land is in issue, the courts should be more reluctant to order the eviction. After all, where will homeless people go when evicted? It is not as if people “grab land” because they are too stingy or callous to buy a R10 million house in Clifton. They often have a stark choice: either occupy land illegally or become entirely homeless.
The claim by the City Council that it is acting under the cover of law is therefore not only anti-poor, but also – this once – untrue. When it claims otherwise, it is merely trying to avoid responsibility from flouting of the Rule of Law (the very Rule of Law which the DA claims to revere).BACK TO TOP