Ground-breaking constitutional court judgement and Managed Land Settlement: Connecting the dots

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June 2017

“Evictions that lead to homelessness are unlawful, even if they are agreed to by all of the residents who stand to be evicted”.

These are the findings of a Constitutional Court ruling on 8 June 2017 as reported by the Socio-Economic Rights Institute of South Africa.

Nomzamo Zondo, SERI’s Director of Litigation, who acted for the Kiribilly residents involved in the case (Occupiers of Erven 87 & 88 Berea v De Wet and Another – ‘Kiribilly’) said: “This is a momentous decision for millions of poor people across South Africa who live with insecure tenure and inadequate housing. As of today, our courts are forbidden from making eviction orders – even if they have been agreed to – until those under threat of eviction are aware of and able to exercise their rights, and until a Judge can be sure no-one will be left out on the streets.”

It’s likely that many municipalities and property owners will be disturbed by this ruling claiming that it will make it very difficult for municipalities and property owners to respond to unauthorised land occupations. What this ruling highlights is that municipalities and government have a constitutional duty, as per section 26 of the constitution dealing with housing, to prevent homelessness.  Rather than see the solution to unauthorised land occupation as evicting people from their homes and continually chasing the same homeless people from one unauthorised occupation to another, municipalities need to start taking far more decisive proactive steps to deal with the homelessness in the first instance.

Managed Land Settlement (MLS), which is being promoted by Afesis-corplan and others, is a way for government to get ahead of the problem of landlessness.  MLS is where government provides (at least) basic services and tenure recognition in planned settlements and allows people to settle on this land in an organised manner supporting them over time to improve their living conditions.

We call on government to use the opportunity provided by this ‘momentous decision’ to take immediate steps to encourage and support municipalities to implement Managed Land Settlement approaches to housing and settlement development.