Opposing cynical evictions: A framework of appropriate remedies

Author Jeremy Phillips

ISSN: 1996-2177
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.