SALGA calls for the PIE Act to be amended to compel private landowners to take reasonable measures protect their land from invasion, and ensure that all spheres of government share the responsibility of providing temporary alternative accommodation to evictees. 

Due to the pressures of urbanisation, larger municipalities are experiencing an increasing number of land invasions as the supply of affordable housing fails to meet the increasing demand of the population inflow to cities.

Every week, if not every day, land grabs, and evictions which eventually end up in the courts dominate daily news headlines.  It’s a downward spiral,  with dire consequences for local government and service delivery.

Section 26(3) of the Constitution states that no one may be evicted from their home, or have their home demolished, without an order of court made after consideration of all the relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998, then gives effect to this clause in the Constitution by setting out fair procedures for eviction of unlawful occupants, and unpacking the “relevant circumstances” which the court must consider in deciding whether or not to grant an eviction order.

The PIE Act stipulates that, in order for the court to grant an eviction for illegal occupation, the court must determine whether such eviction is “just and equitable”. Given that the Constitution states that everyone has the right to access to adequate housing, it would not be just and equitable to evict someone if they would be rendered homeless by the eviction. In other words, if a household is desperate and has nowhere else to go, an eviction cannot be granted unless temporary alternative accommodation can be made available to the evictees.

In the landmark Blue Moonlight case, a critical precedent was set. In a case involving eviction from private land, the Constitutional Court granted the eviction order and stated that it was the State’s responsibility to provide alternate accommodation. Importantly, the Constitutional Court held that it was the responsibility of the municipality to provide the alternate accommodation.

This puts local government in a difficult position. According Schedule 4A of the Constitution, housing is a concurrent responsibility of national and provincial government—not local government. The Housing Act sets out the role of all three spheres of government and indicates that LG is chiefly responsible for:  identification of land, provision of services (including water, sanitation, electricity, roads, stormwater and transport) and planning, facilitation and coordination of housing development . Although some provinces use municipalities as implementing agents to deliver housing, in most cases the provincial department implements housing projects. The funds come from a conditional grant from national department to the provincial departments, which are spent on various government-subsidised housing programmes as set out in the National Housing Code.

Notably, the Constitution does allow for the shift of a function to municipalities if that matter would be more effectively administered at a local level, and if the municipality has the capacity to administer it.  However the process of assigning the housing function to the metros was put on hold in 2014 by a decision of national and provincial government.  If the housing function was assigned to major municipalities, then those municipalities would receive the funds directly from the national department and could plan, budget and implement projects appropriately to house evictees in their jurisdiction. But in the present policy and fiscal framework, the only recourse municipalities have is to apply to the provincial department for funds under the Emergency Housing Programme for alternative accommodation for evictees. Often these applications are delayed or declined.

We are left with a basic contradiction: the Courts have stated clearly that they view housing as a municipal responsibility, as shown by court orders compelling municipalities to provide alternative accommodation to evictees. But our policy and fiscal framework doesn’t provide those municipalities with the authority or resources to carry out the function.

Intuitively, citizens already assume that housing is a responsibility of local government, as evidenced by research showing that the majority of local community protests are triggered by housing concerns. It makes sense that local government, which is already responsible for the provision of basic services which are fundamental to human settlements, would also be responsible for planning and implementing the final piece which is the houses themselves. Devolution of the housing function to LG would facilitate coordination and delivery of integrated, sustainable human settlements, and empower municipalities to adequately and pro-actively plan for urbanisation.

The legal framework as it is, is untenable. While planning and community engagement efforts by municipalities often fall short and must be substantially strengthened, it is also true that municipalities are backed into a corner when private land owners fail to act in response to land invasions, allowing the mushrooming of informal settlements. Later, when the land is sold and the informal settlement has exploded to hundreds of households, the municipality is finally approached and told they must evict (and provide alternate accommodation), or be forced to purchase the land from the private owner at substantial cost. The court-ordered provision of alternate accommodation to thousands of evictees can disrupt existing plans to deliver units to beneficiaries who have patiently registered on the National Housing Needs Register and sat on waiting lists for years.

The former National Minister of Human Settlements indicated her intention to amend the PIE Act. As SALGA, we would like to see amendments to the legislation that better balance the rights of occupiers, private and state landowners, in a manner which allows for sustainable municipalities and the fair allocation of government-subsidised housing opportunities. SALGA would like to see the Act amended to compel private landowners to take reasonable measures to protect their land from invasion, and to ensure that national and provincial government share the responsibility of providing temporary alternative accommodation to evictees.

Our South African Constitution ensures the right to access to adequate housing is held by rate-payers and unlawful occupiers alike. But the legal and policy framework must be brought into line to empower local government to have more power and resources to plan for urbanisation, act in cases of land invasions, and adequately provide temporary alternative accommodation to evictees. Local Government cannot carry this burden alone.

Alison Tshangana is a Human Settlement Specialist

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