Evicting Unlawful Occupiers for Health and Safety Reasons in Post-Apartheid South Africa
Authors Gustav Muller
Affiliations: Senior Lecturer, Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 616 – 638
In two recent judgments, the Constitutional Court failed to provide local authorities with guidance as to the precise nature of the relationship between police-power legislation to evict unlawful occupiers for health and safety reasons, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. I set out to provide such guidance by contextualising South Africa as a constitutional democracy with a supreme Constitution (the principle of a single system of law) that delineates a point of departure for establishing which source of law should regulate litigation about the alleged infringement of a right in the Bill of Rights (the subsidiarity principles). I then overlay the principle of a single system of law and the subsidiarity principles with characteristics of a property system that promotes s 39(2) of the Constitution. Taken together, these principles and the characteristics are used to evaluate the National Building Regulations and Building Standards Act, the Disaster Management Act, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act with a view to establishing which of them is the most appropriate source of law for evicting unlawful occupiers for health and safety reasons.