Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]
Authors: ZT Boggenpoel and S Mahomedy
Affiliations: BComm LLD, Professor of Public Law, Stellenbosch University, Chair of the South African Research Chair in Property Law, Stellenbosch University; LLB LLM, LLD Candidate and Research Intern at the South African Research Chair in Property Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 482 – 495
While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.