Cheatography
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Evictions, Prevention of Illegal Eviction from Unlawful Occupation
This is a draft cheat sheet. It is a work in progress and is not finished yet.
History & Politics of Eviction in SA
PISA used in Apartheid to enforce segregation and dispossess POC in "white" areas. |
PISA in contradiction with Prevention against eviction wo court (S26), human dignity (S10), privacy (S14), Freedom & Security (S12), interest of child (S28) |
PIE
Occupiers are provided with procedural & substantive safeguards against arbitrary evictions |
Evictions can only take place through court order - court must ensure order does not worsen the circumstances of marginalized. Right to Dignity must be upheld. |
Municipalities muse have a housing plan for evicted - temporary as emergency relief if no perm housing. |
The Problem with PIE |
PIE has no remedy for illegal evictions - man uncompliant evictions have taken place. |
People have tried to use MVS |
Authority for court order requirement - PIE or *Mamelodi |
Ngomane v Johannesburg
Facts |
People living on traffic Island |
Dismantelled home during the day, rebuilt at night. |
Municipality came during the day, removed belongings and destroyed them |
Remedy? |
MVS? No, Impossible because materials destroyed |
Tswelopele? No, there was no eviction from home: unassembled building materials in a pile could not be deemed as "buildings"/'Structures" (wording in PIE) |
New Remedy: s25(1) - no one can be deprived of property except in terms of law of gen application, and no law can permit arbitrary deprivation of property. |
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Tswelopele
Facts |
Occupiers unlawfully evicted - no court order. (vio: PIE & S26) |
Building materials destroyed |
Tswelopele brought MVS - can prove facta probanda but goods destroyed. |
But because of egregious violation of constitutional rights, they cannot get away with this - constitution must do something (Fose). |
Appropriate Remedy (s38) |
Occupiers must get shelters back. |
Authorities must reconstruct shelters. |
Building materials must replaced w materials that afford habitable shelter |
Misgivings |
Specific requirements for constitutional remedy not clearly outlined |
Kinds of relief remedy affords not clearly set out |
Considered duplicate of remedies of outcomes already in precedent |
Otherwise, commentators happy and find this sufficiently fulfilling s8 & s38 |
Using Tswelopele
Requirements for Constitutional Remedy: |
Violation of s26: 1) Eviction from home 2) without a court order |
What is a home? |
City of CT v Rudoph: makeshift temp structures can = homes (may be all one can afford) |
Breedevallei Munisipaliteit: Occupation of low cost housing for 10 days & met requisite degree of performance = home |
SCA Benner v Min Land Affairs: A holiday cottage not a home. Four requirements: |
-Regular occupation x some degree of performance |
-dwelling in which one habitually lives |
- fixed residence of household |
- not merely used for occasional visits |
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Schubart Park
Illegal eviction from Schubart Park, residents want to return |
Two Potential Claims |
MVS |
Because they were despoiled of their homes, demands of s26(3) are at issue here. |
Remedy: Residents allowed to return, buildings restored so they are fit for habitation - temporary accom = appropiate relief. |
Reason for granting MVS = MVS not regarded as appropriate relief as applicants have brought application on violation of s26(3) (i.e constitutional rights). Argued that it cannot do important work of vindicating ConRights. |
Can MVS be used in Evictions?
While MVS does not do enough to = appropriate relief, it has other advantages: |
General advantages: can be used by unlawful occumpiers + can deter unlawful evictions + fast |
1. Speedy remedy that does not ask Q's about merit |
2. Can include rebuilding of structures (ie to restore status quo) |
3. Temporary solution does not prevent vindication of rights later. |
4. Relevant in highlighting plight of vulnerable occupiers. |
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