Opposing cynical evictions: A framework of appropriate remedies
Author Jeremy Phillips
Affiliations: LLM Student, University of Fort Hare
Source: South African Law Journal, Volume 137 Issue 4, p. 733-762
The South African political landscape has been darkly coloured by inhumane evictions, exacted to design the social and geographic landscape of the country along discriminatory lines. A notorious brand of eviction, often resorted to by the apartheid state, is the ‘cynical eviction’ — an unlawful eviction where the evictee’s home is demolished and destroyed. Shamefully, cynical evictions have persisted post-1994. The cynicality of such an eviction lies in the fact that, by destroying the materials of the home, the defence of impossibility precludes the evictee relying on the mandament van spolie. While there is consensus that evictees are entitled to relief, there is disagreement on which remedy should deliver that relief. Developing the mandament van spolie to bypass the defence of impossibility has been touted as the ideal remedy, whereas the court in Tswelopele, and subsequent academic commentators, have preferred an extraordinary remedy based directly on s 26(3) of the Constitution. This article argues that the debate is a false dichotomy. There are subtle, but critical, differences which distinguish both remedies. Furthermore, the possessory action should be revived as a third alternative remedy. With three available remedies, all offering different forms of relief, evictees have a comprehensive arsenal with which to combat cynical evictions.