Security of tenure had very little meaning for the vast majority of South Africans as Nelson Mandela walked out of Pollsmoor prison. Told what citizenship to have by apartheid, where to live by the Group Areas Act, liable to eviction at the whim of any landlord or security force and easily arrested for trespass, black South Africans faced often insurmountable legal obstacles in establishing their right to occupy their own land. South Africans also found that their recently bought houses could easily be attached and sold by mortgage holders with great ease as interest rates climbed in the early 1990’s to over 20 per cent. The one sign of a possible improvement in security of tenure in a dangerous, racist and volatile society was the announcement of the impending constitutional negotiations and the appointment in 1991 of the Advisory Commission on Land Allocations to consider the return to dispossessed black South Africans of land from which they had been forcibly removed.
Controlling the movement of black South Africans was a cornerstone of the oppressive apartheid system. Only since 1986 have black South Africans been able to travel about their own country without fear of arrest for being in the wrong place. For the following four years their freedom of movement was still much curtailed by the state of emergency. In recent years there has been much increased movement to the cities. This case study briefly looks at the consequences of those rapid changes. Private property is substantially still in white hands; housing for poor people moving to the cities is being delivered but does not meet the need of the rapid urbanisation — accordingly thousands simply build shacks on land found suitably close to the cities.
The democratic government decided to repeal the constitutionally unenforceable Prevention of Illegal Squatting Act1 — and in 1998 passed the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act2 (hereinafter called PIE). Most of the land related cases reaching the higher courts3 have dealt with PIE’s impact on the lives of people living illegally on land in the burgeoning urban areas.
South Africa’s first democratic election took place in 1994. The newly elected government under the interim constitution set up the Land Claims Court with a Land Commission to replace the Advisory Commission — and black South Africans who had been dispossessed of land in terms of legislation which after 1994 would be considered unconstitutional could institute a claim for the return of their land or for compensation.4
After extensive negotiations South Africa’s current constitution was adopted in 1996.5 Chapter 2 of the 1996 Constitution, the Bill of Rights, contains several important provisions relating to tenure which were to become the focus of litigation over the next 10 years. These include:
- Section 25 which provides for protection of property rights, protection against arbitrary deprivation of property, compensation for expropriation of property and, in particular, section 25(5) which requires that “the state must take reasonable legislative and other measures within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
- Section 25(6) provides that: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or to comparable redress.”
- Section 26 provides that: “(1) Everyone has the right to have access to adequate housing (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
- Section 7(1) provides that that the Bill of Rights “affirms the democratic values of human dignity, equality and freedom”6 and Section 7(2) that “the state must respect, protect, promote and fulfil the rights in the Bill of Rights.”7
These constitutional provisions clearly envision a transformative state that not only protects hard won rights but also requires it to progressively ensure their fulfilment.
In recent years South Africa has experienced accelerated urbanisation and increased rural impoverishment — and substantial increases in the price of land in the main urban areas where people are looking for houses and employment. The state has a housing program that has provided in excess of one million low cost houses since 1994. The extent of the challenge in respect of providing secure tenure is apparent from the recent SA Cities Report8 which records that notwithstanding the number of houses built, the number of households in the nine largest urban areas without formal shelter has increased from 806,943 in 1996 to 1,023,134 in 2001 and 1,105,507 in 2004. Table 1 reveals the extent of the housing crisis.
The picture in rural areas is even starker. Recent research commissioned by the Nkuzi Development Agency9 has shown that the number of farm workers being evicted from farms has increased substantially notwithstanding new protective legislation.10. Download to read more
|Publisher||United Nations Human Settlements Programme|