Doctoral Degrees (Centre for Human Rights Law)
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Item Open Access To remain(University of the Free State, 2022) Mhlanga, Lindani; Brand, J. F. D.An undeniable inroad made into the regulation of property ownership has been the requirement that evictions may only take place with the permission of a court of law. In the South African context, this requirement has been further augmented by the “just and equitable” measure. This means that not only are evictions only allowed on the basis of a court order, and but also only to the extent that a court has exercised a “just and equitable” discretion. The exercise of the just and equitable discretion has resulted in three distinct types of eviction orders. The first of these orders are those instances in which the courts grant an eviction application and then suspend the order, enabling unlawful occupiers to continue living on the land/property while the State looks for alternative land to resettle the occupiers. The second, are instances in which a court grants an eviction but, for whatever reason, enforcement becomes impracticable, resulting in unlawful occupants remaining on private property that belongs to someone else. The third type of orders are those instances where a court denies an eviction application, enabling unlawful occupiers to indefinitely remain on land that belongs to someone else. In this thesis I look into the fact of remaining as a consequence of the third type of order. The effect of the court decision not to grant the eviction order results in the practical situation of the unlawful occupier remaining on such land. The unlawful occupier remains on land belonging to another notwithstanding the fact there is no countervailing right to do so. While the intervention to bring evictions under the ambit of justness and equitability more so in an unequal and deprived society such as South Africa is laudable, the failure of the courts to address the legality and tenure security posed by the eviction order not to evict despite unlawfulness of occupation having been established negates the good intention. In this regard, I contend that hesitancy to address the legitimacy and tenure security of this identified fact of remaining has to do with the structure and approach to the law, which supports indifference and detachment. This indifference and detachment minimise the law's (constricted) inherent capacity to remedy the asserted problem of tenure insecurity.