featured image

HDA hosted sector workshop on unauthorised land occupation and its impact on the upgrading of informal settlements on 17 May 2016.

Unauthorised land occupation is a prevalent and growing phenomenon in South Africa and has drawn great public discourse. Our courts have passed judgments on the matter and this has necessitated that the government prepares itself better when it handles such cases. Municipalities across the country are confronted by cases of unauthorised land occupation, as a result of increasing housing backlogs and lack of access to basic infrastructure services. Constitutional Court Grootboom judgement definition of a land invasion

“Land invasion is the act of taking occupation of land or buildings with the express intent of coercing a state structure into providing housing on a preferential basis to those who participate.”
– Constitutional Court Grootboom judgement, 2000

The HDA, in partnership with Afesis-corplan, has therefore embarked on a process to explore the complexities and challenges around unauthorised land occupation in support of the informal settlements upgrading programme.

The workshop targeted key role-players from the three spheres of government and civil society organisations currently involved and/or working with informal settlements at all development levels. The session was facilitated by governance advisor Monty Narsoo, who boasts a wealth of knowledge and expertise in the human settlements sector, and its primary aim was to share best practice and knowledge on how to best handle the contentious issue of unauthorised land occupation.

Opening the workshop, Narsoo stated that “it is not only important for the sector to share best practices around key challenging issues, such as unauthorised land occupation, but to equally share and learn from bad practices”.

Central to how the government or any other property or land owner handles land invasions are the prescripts according to the law and court judgments on past cases. The judgments clearly set out defined roles, responsibilities and what is acceptable and not acceptable on the part of the State. The state has a duty to:

  1. No pre-emptive eviction – The state cannot counter-spoliate on behalf of a private owner.
  2. Duty to engage – When dealing with its own property, or when dealing with occupations of private property, the state has a duty to engage.
  3. Duty to plan – The local municipalities are under duty to proactively plan in order to deal with new land occupations in a non-coercive manner.  

Four municipalities were chosen as case studies as part of the research methodology for this project: Buffalo City Metro, eThekwini Metro, Rustenburg and the City of Cape Town. All case study municipalities indicated that they take their legislative cue in dealing with unauthorised land occupation from the
Constitution and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act, 1998).

Rustenburg noted that the founding provisions of the Constitution are based on human dignity, the achievement of equality and the advancement of human rights and freedoms. Land occupiers are first warned of the unlawfulness of their actions and thereafter incomplete shacks or structures are demolished. In instances where shacks or structures are complete, a court order is obtained to deal with occupations on municipal or private land.

All municipalities said they made ward committees and ward councillors aware of the unlawfulness of land occupations and adopted policies to deal with current and future land occupations, but did not make the link between using new land development as a proactive tool to prevent unauthorised land occupation happening in future.

Giving the legal perspective to this controversial matter, Stuart Wilson, executive director at the Socio-Economic Rights Institute of South Africa, stressed the view that “municipalities are under a duty to pro-actively plan, budget and build capacity to deal with new land occupations in a non-coercive manner”.

The municipal participants welcomed the initiative, but stressed that they still faced numerous challenges in responding timeously to land invasions. These ranged from inefficiencies around allocations of subsidised housing opportunities, and the powers and functions of municipalities in human settlements delivery and expropriation.