On considering alternative accommodation and the rights and needs of vulnerable people
Authors Gustav Muller
Affiliations: Lecturer, Faculty of Law, Rhodes University
Source: South African Journal on Human Rights, Volume 30 Issue 1, 2014, p. 41 – 62
Courts have recently been at pains to incorporate detailed descriptions of the squalid conditions that prevail in informal settlements and inner-city buildings that have been abandoned by their owners. It has also become customary for courts to include a detailed overview of the history of the occupation to highlight the daily struggles of these unlawful occupiers. Despite this acknowledgment of the realities of the accommodation of impoverished groups, the courts have continued to issue eviction orders that are sought in the name of health and safety considerations or development without any serious regard to the disastrous impact that the evictions and subsequent relocations to distant accommodation will have on the livelihoods of the unlawful occupiers. It is therefore regrettable that the courts do not use the social and historical context of the unlawful occupation that they narrate at the beginning of these judgments to craft context-sensitive eviction orders in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). This lack of real engagement with the intolerable conditions that unlawful occupiers live in significantly reduces the impact that the availability of alternative accommodation has as a consideration. This is furthermore at odds with the principle that courts should be reluctant to evict relatively settled occupiers unless it is satisfied that alternative accommodation is available. This article proposes an organising framework for considering the suitability of alternative accommodation as part of the just and equitable eviction order that a court must grant in terms of s 4(8) and (9) of PIE. This organising framework is based on the categories of people that PIE explicitly requires courts to have regard to in ss 4(7) and 6(3) when considering whether it is just and equitable to evict the unlawful occupiers.