Should a landowner obtain an eviction order prior to the removal of informal settlement structures erected unlawfully, and without the landowner’s consent, on his or her private property? When living in South Africa, the sighting of informal settlement structures being erected on vacant land is quite common. Unfortunately, these informal settlements are sometimes erected on private land and without the owner’s consent. The question arises whether the landowner can unilaterally, or with the assistance of the local municipality, remove these informal settlement structures without first obtaining an eviction order from a court and without any repercussions.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (hereafter “PIE”) is legislation promulgated in order to give effect to Section 26(3) of the Constitution to ensure that no person may be unlawfully evicted from, and their home demolished without having an order of court stating to that effect. In terms of the PIE Act, the term “building or structure” is defined as to include tents, shacks, huts or any similar structures.

As mentioned above, informal settlement structures are mentioned in the definitions of PIE, which means that a person residing in such a structure is protected by PIE. Consequently, this has the effect that a landowner needs to follow the correct legal proceedings in order to obtain an eviction order from a court before he or she intends to demolish and remove such informal settlement structures from their property, even if the structures have been erected without consent. 

In the case of Ramahlele and others v Fischer and another , Mrs Fischer, the landowner, approached the local municipality who then assisted her with demolishing and removing informal settlement structures which kept being erected on her land without her consent. The landowner and the municipality brought the main application against the occupiers; however, the occupiers brought a counterapplication for their protection against unlawful dispossession of their structures, such application is otherwise known as a Mandament of Spolie.

A Mandament of Spolie or a Spoliation application is based on a legal principle in South Africa which holds that a person is not allowed to take the law into their own hands and needs to follow the proper legal procedure to obtain the relief sought. The elements that need to be proved by the applicant for a spoliation order are first, that they had undisturbed and peaceful possession of the immovable or movable property and second, that the respondent unlawfully deprived them of such possession.

In the abovementioned case, the municipality argued that they only demolished and removed the structures which were not considered “homes” as they were either incomplete or it appeared that the structure was not being occupied at the time when the structures were inspected. 

The Court held that the reasoning of the municipality was fatally flawed and continued to state that if an informal settlement structure is complete, the piece of land of the owner can be regarded as being invaded, which then further results in the fact that occupation has occurred, then it consequently results that PIE and its provisions are applicable to protecting the occupiers’ rights to remain residing in the informal structure on the privately owned land. 

The Court held further that the short duration of the existence of the informal settlement structures did not disqualify the structures from being regarded as “homes”. As these informal structures were regarded as “homes”, the Court stated that the demolishment and removal of the occupiers’ structures without an order of court resulted in them being deprived of their rights to be heard in a court of law in terms of PIE. 

In conclusion, the Court ordered that the municipality be interdicted and restrained from evicting or demolishing the informal structures if they did not have an eviction order in place. The Court went further and ordered a spoliation order in that the municipality had to reconstruct and rebuild the informal settlement structures for the occupiers on the landowner’s land.

Therefore, it is evident that the Mandament of Spolie can easily be utilised by unlawful occupiers to prevent landowners from removing them from their private land if the correct legal process is not followed in this regard and the necessary court order is not obtained. It is important to note that the Court did not condone the unlawful occupiers’ conduct, but merely, in its decision upheld the law as pertaining to the spoliation application brought by the occupiers.

WRITTEN BY MARILIE BEUKES

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