ii 

 

 

TO REMAIN. 

BY 

 

LINDANI MHLANGA 
(STUDENT NO: 2019255237) 

 

A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE 

AWARD OF DEGREE OF DOCTOR OF LAWS (LLD) AT THE FACULTY OF LAW, 

UNIVERSITY OF THE FREE STATE, REPUBLIC OF SOUTH AFRICA. 

SUPERVISOR: 
PROFESSOR JFD BRAND. 



 

 

iii 

 

DECLARATION  

 

I declare that this thesis is the product of my independent research conducted under 

the guidance of my supervisor. The thesis has not been submitted or presented, either 

in whole or in part, for the award of any degree in any university or institution of 

learning. I further declare that all anti-plagiarism rules have been complied with and 

all sources consulted or referred to have been duly acknowledged as appropriate.  

 

 

 

Signed  

LINDANI MHLANGA  

STUDENT NO: 2019255237 

 
 
NOVEMBER  2022, BLOEMFONTEIN.  

  



 

 

iv 

 

SUMMARY 

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.  

Key Words: Land, Reform, Property, Tenure, Claim, Equitable, Ownership, Rights, 

Remain, Interest. 



 

 

v 

 

ACKNOWLEDGEMENTS 

 

We may make our plans, but God has the last word. – Proverbs 16.  

This was never meant to happen. How could that be? Where would I have come to be 

comfortable with the notion that this, too, is possible? Is it an exaggeration to say that 

having been born to parents with no formal tertiary education, this is the fulfilment of 

my forefathers' wildest dreams? To whom does this belong?  

I certainly have no right to claim that this was the product of my talents. This thesis's 

successful completion was made possible by several people. I am quite proud to 

mention a few of them here.  

I would like to thank Professor Danie Brand for the opportunity to work under his 

enlightening supervision. His consistent, compassionate, and fatherly guidance has 

resulted in yet another milestone. While I will remember this journey for the tumultuous 

periods associated with this level of study, I consider myself fortunate to have 

benefited from Danie's dedication in developing young and upcoming property law 

experts.  

Elizabeth, my amazing sister. This is as much yours as it is anyone else's who wants 

to claim it based on parental responsibility. Thank you for committing your time and 

resources to everything I have set out to do.  

Wilbert, my brother. It is because of your earlier Masters’ degree that I saw the 

prospect of one day attaining the same. In that regard, thank you for setting the 

foundation for this accomplishment. A torch bearer's duty is to pave way for those who 

come behind him. As I now carry the torch in this one aspect of life, I can only hope 

that I may do so in a way that inspires others. 

To my nieces, Megan and Madison. This too is possible! 

To my family at the Free State Centre for Human Rights. Thank you for the input and 

insights over the years. Each and every one of you has in their own way made the 

journey that much more rewarding and wholesome. 



 

 

vi 

 

Lastly, to my late parents. As life would have it, I cannot celebrate this with you. Neither 

can I share with you my anxieties about the future. What I can do, however, is reflect 

on the life we shared together. After all, I have done this consistently over the years 

— if not to remain true to our identity, then to cope with the tragedy of loss. In our 

identity lies an important value and lesson. In the midst of life’s imperfection, the 

difference between those who have and those who do not have is chance and not so 

much ingenuity. Chance to escape the structural pitfalls that entrap our existence as 

a people. It is only by chance that I write these words on such a momentous occasion. 

It is, however, deliberate that I have chosen to use this chance to attempt to write us 

out of the wait for chance.  

I dedicate this milestone to you. Let this be a tribute to a life well lived. May your 

beloved spirits find eternal peace. 

 

eDube, eMhlanga! 

 

 

The world changes, revolutionaries die, and the children forget. Nizilibel'uba nizalwa 

ngobani – Thandiswa Mazwai 

  



 

 

vii 

 

Table of Contents 

DECLARATION iii 

SUMMARY iv 

ACKNOWLEDGEMENTS v 

CHAPTER 1 1 

INTRODUCTION 1 

1.3 Motivation 12 

1.4 Methodology and approach 15 

1.5 Qualifications 16 

1.6 Overview of thesis 17 

CHAPTER 2  ESTABLISHING THE HISTORICAL AND LEGISLATIVE CONTEXT IN 

WHICH A CLAIM OF AN UNLAWFUL OCCUPIER TO REMAIN ON PRIVATE 

PROPERTY ARISES 18 

2.1 Introduction 19 

2.2 A history of law and displacement: evictions pre-1994 22 

2.2.1 Black land tenure and urbanisation 23 

2.2.2 Rural land tenure 24 

2.2.3 Urban land tenure 28 

2.2.4 The Prevention of illegal squatting act 34 

2.3 Evictions from land post-1994 37 

2.3.1 General overview of eviction legislation 40 

2.3.3 The concept of “just and equitable” 49 

2.4 Conclusion 53 

Chapter 3  ORDERS TO REMAIN 55 

3.1 Introduction 55 

3.2 Orders to remain 57 



 

 

viii 

 

3.2.1 First and second type of orders 57 

3.2.2 Third type of orders 72 

3.3 Distinguishing between orders to remain 82 

3.4 When is who entitled to the third type of orders 88 

3.4.1. Common threads in the third type of cases 90 

3.5 Conclusion 94 

CHAPTER 4 ESTABLISHING THE NORMATIVE CONTENT OF A CLAIM TO 

REMAIN 96 

4.1 Introduction 96 

4.2 Servitudes 97 

4.2.1 General overview 97 

4.2.2 Personal servitudes 99 

4.3 Burial rights 113 

4.3.1 Introduction 113 

4.3.2 General overview 113 

4.3.3 Burial rights and the claim to remain 116 

4.4 Mineral rights 123 

4.4.1 Introduction 123 

4.4.2 The claim to remain and mineral rights 128 

4.5 Conclusion 136 

CHAPTER 5  THE CLAIM TO REMAIN AND THE RIGHT NOT TO BE ARBITRARILY 

DEPRIVED OF PROPERTY 137 

5.1 Introduction 137 

5.2 Politics of the sec. 25 right 139 

5.3 Sec. 25 and the claim to remain 144 

5.3.1 Introduction 144 



 

 

ix 

 

5.3.2 Sec. 25 requirements 145 

5.4 Conclusion 173 

CHAPTER 6 176 

CONCLUSION 176 

6.1 Observations. 177 

6.2 Do we (a)mend it? Or end it, for all times? 185 

BIBLIOGRAPHY 190 

 

 



1 

 

 

CHAPTER 1  

INTRODUCTION 

 

1.1 Research problem 

In this thesis, I examine the position of unlawful occupiers who remain on land 

belonging to private landowners owing to a court application for their eviction having 

been denied, because it would be unjust and inequitable to evict. I describe and 

critically look into the legal nature of the position of such unlawful occupiers and the 

manner in which once established, such a position, counter-relates to the ownership 

rights of the landowner. This is the main research problem.  

I engage this main problem against the background of a broader issue, that relates to 

two assumptions. My initial assumption is that little has been done, whether through 

research or the courts, to determine the legal position of an unlawful occupant who 

remains on private land after an eviction application is denied for the substantive 

reason that it would be not just and equitable to evict. I further hypothesise that the 

way the fact of remaining on someone else's land arises in this case, places this 

particular position in a class of its own. 

Because it is in a class of its own, my second related assumption is that the issue at 

hand is exposed to the obtaining conservative approach to the development of new 

rights to land. This conservative approach, in part, is attributable to a deliberate 

reluctance to confront the socio-political and economic settlement that holds the fairly 

new democratic state.1 I believe South Africa's tenure crisis stems from apartheid's 

racist land tenure policies, as well as private owners' common law remedies, which 

resulted in large-scale forced evictions.2 Yet, I also believe it is maintained today by 

 
1 This does not imply that it is the only explanation. As a prominent scholar in this field pointed out to 

me, it is also caused by a lack of creativity and drive to develop innovative interactions with and in 
the land. This is a well-intended challenge that lawyers, scholars, and jurists should all accept. This 
thesis is an attempt in that direction. 

2 Van der Walt 2005. 



 

 

2 

 

apartheid-style power relations at the cost of meaningful reform.3 This phenomenon 

manifests on the social and legal sphere as a tendency to maintain a fiction of 

neutrality concerning substantive visions of the good, to deny conflict and contestation 

and to emphasise unanimity.4 This fiction of neutrality, given the long-standing 

apartheid-styled power dynamics, simply serves to confirm the old order.5 It is the 

portrayal of rules as neutral, despite the reality that these norms are shaped by the 

highly contentious and politically specific ideals of freedom, equality, and the rule of 

law that underpin the traditional view, and are thus self-reinforcing.6 Any attempt to 

change the rules in a way that contradicts these politically particular concepts of 

freedom and equality is easily interpreted as anti-constitutional and anti-rule-based 

order. This shields these norms from constitutional scrutiny, which is a violation of the 

constitution's provision that all law be subjected to transformation.7 This factor, in 

combination with other factors not considered here, offers a plausible explanation why 

the transformative potential of the Constitution of the Republic of South Africa Act 108 

of 1996 (hereafter Constitution) concerning land tenure reform has not fully 

materialised.8 In this particular instance, it offers a reason why the courts have been 

hesitant to address the legitimacy and tenure security of this identified fact of 

remaining.  

 

1.2 The broader problem 

1.2.1 Theoretical framework 

I begin this section by quoting two writers, each expressing two context related 

parameters fundamental to the hypothesis proffered above. I do this to underline the 

theoretical framework I will employ to explore the broader questions raised in this 

thesis. 

 
3 Bond 2004: Ch 1. 
4 Mouffe 1993:3-5. 
5 Brand 2009:206. 
6 Botha 2004:273. 
7 Botha 2004:273. 
8 In this thesis reference to the Constitution, or the ‘new’/’current’ Constitution refers to the Final Constitution of 

Republic of South Africa Act 108 of 1996, unless otherwise indicated. See Van der Walt 2002a. 



 

 

3 

 

First, Van der Walt, writing in the wake of the transition from apartheid to a liberal 

democratic constitutional order, argues that in order for genuine transformation to 

occur, the perspectives and political narrative of those without property, those on the 

margins, must inform the nomenclature of rights built at the heart of current property 

doctrine.9 Van der Walt declares; 

“Certain justice driven qualifications of and amendments to the property regime are so fundamental that 

they cannot be accommodated within or explained in terms of the current doctrine - they require a re-

think of the system, a reconsideration of the language, the concepts, the rhetoric and the logic in terms 

of which we explain and justify choices for or against individual security and systemic stability in the 

property regime.”10 

Second, Ngcukaitobi in the preface to the book Land Matters;11 (well after Van der 

Walt) 

“While constitutionalism has developed since 1994, land redress has lagged. Constitutionalism is a 

state predicated on values of equality, freedom, and dignity derived from an overarching Constitution. 

Questions about the reasons for the failure to modify property relations, as well as the future of land 

reform, are being discussed with greater urgency now than they were during the first two decades of 

democracy.”12 

Two questions emerge from reading these extracts. It is whether the constitutional 

legal framework that regulates land reform has given those who work it little to no 

opportunity to “reimagine” and “rethink” how we relate to land rights. It is 

also whether those who work the constitutional legal framework given the opportunity 

have failed to “reimagine” and “rethink” how we relate to land rights.13  

 
9 Van der Walt 2002a:254-289.  
10 Van der Walt 2002a:254-289.  
11 See Ngcukaitobi 2021. See also Sisulu “Hi Mzansi, have we seen justice?”, 

https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-
e5db-4293-aa21-dcccd52a36d3 (accessed on 18 April 2022) - Lindiwe Sisulu, a member of the ruling 
party's ANC national executive committee, argued that "Apartheid was "legal". Jim Crow laws were 
"legal" in the United States. Colonialism was considered "legal." Even the Nazis were "legal" in their 
actions. So, what does having the rule of law imply? 'After all, whose law is it anyway?'- reflecting on 
the Constitution's perceived failure to bring about material socioeconomic change in society after 28 
years. 

12 See Ngcukaitobi 2021. 
13 See Department of Rural Development and Land Reform 2017:8-17. See also Statistics South Africa 

2012. The stats show that 9% of the population being white people own 72% of the farmland, 49 % of 
urban free-hold land, 45% of privately-owned sectional title units. A related question is, who is 
responsible for the reimagining or rethinking? This thesis may come across as implying that the failure 

https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-e5db-4293-aa21-dcccd52a36d3
https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-e5db-4293-aa21-dcccd52a36d3


 

 

4 

 

When the viewpoint is broken down into its fundamental components of land tenure, 

land redistribution, and land restitution, it reveals a gap between the outcome and the 

early aspirations.14 Is this, however, a sign that the current constitutional legal 

framework has failed, or are there other conceivable causes that have come to a head 

individually and or collectively? 

The thesis's highlighted problem relates to the framework of land tenure. The reform 

agenda it sets out to meet: a demand for changing the terms and conditions under 

which land is held, used, and traded by granting unambiguous rights in land to those 

who live and or work on land they do not own or have no rights to.15 That is, has the 

constitutional legal framework governing the tenure reform programme failed to enable 

us to reimagine in unambiguous terms the manner in which we approach the 

recognition of non-right interests of those who live and or work on land they do not 

own and/or have no rights to? Whose interests are at the centre of how we relate to 

land and rights to land?16 

In response to the above, it seems natural to look at the legal framework first and then 

the approach to the legal framework. An inhibitive framework may deter any approach, 

no matter how innovative it may be. In respect of the framework, the question is 

whether the law regulating evictions from land contains or does not contain within its 

text that which guarantees the security of tenure of persons without rights to land, to 

the extent pondered in this thesis. In terms of the approach, the question is whether 

the court’s adopted approach sidesteps the law's inherent ability to address the 

security of tenure of persons without rights to land, to the extent pondered in this 

thesis. I grapple with these questions below.  

 
to rethink or reimagine is primarily with those who interpret the law. This cannot be correct. To varying 
degrees, those who interpret the law and those who make it are responsible. 

14 See Badenhorst et al. 2006:585-665, Carey Miller & Pope 2000:313-455; Mostert et al. 2010; Kloppers 
2012:60-64, 77-85.  

15 Kloppers 2012:60-64, 77-85. This limitation is not oblivious to the interrelatedness of the three sub-
categories of land reform identified above. Indeed, the level and extent of land restitution and or 
redistribution is bound to have a correlated positive impact on security of land tenure of those without 
land. For a full discussion on land tenure reform see Aliber, Maluleke, et al. 2013, Lahiff 2011, Hebinck 
and Shackleton (2011). 

16 But then again who are those without and what are their interests? I contend that this is a subject of 
debate even within the Black political caucus. To the extent that it remains a debate, the status quo is 
maintained. See Mosiua Lekota, a former freedom fighter at odds with Julius Malema, the leader of the 
Economic Freedom Fighters at https://www.youtube.com/watch?v=6xPTyQOnvP4.    

https://www.youtube.com/watch?v=6xPTyQOnvP4


 

 

5 

 

In this account, I evaluate from a critical standpoint, the autonomy, structure, 

language, universality, historicity, of the law and professionalisation of South Africa's 

modern-day law practitioners, all of which are presumed to be largely independent of 

and unaffected by political, moral, customary, religious, and other variables. The aim 

is to emphasise the importance of recognising and accounting for inadequacies in the 

law, as well as how it is applied and the influence these inadequacies have on land 

tenure reform. Certainly, this approach is not apathetic to the potential of the 

constitutional framework to achieve concrete transformative goals.17  It is motivated 

by the recognition that the capacity to generate truly transformative outcomes stands 

limited if we reflexively continue to operate in terms of its accepted methods and 

intuitions.18  

In addressing the two questions above, references to perspectives that might be at 

odds with the critical perspective are made but the intention is not to cross doctrinal 

boundaries. Instead it is to draw from a variety of legitimate perspectives and 

arguments that can be used to evaluate rather than replace the preferred 

critical approach.19 I lend my proverbial ear to Ndebele, who, in the words of Van 

Marle, advocates for “an angle of approach” instead of a detailed one “that would chew 

away at your options,” in order to open space for dialogue and reflection ”that leads to 

a return to a moment of honesty.”20  

1.2.2 The law and the approach to the law 

 
17 This theoretical approach involves viewing the law, as well as how it is applied by those who wield it, as 

replete with anti-transformative tendencies as it is with transformative ones. To understand that it is not 
either/or but a matter of perspective. Indeed, this is why I write, to offer ‘a perspective’ not ‘the 
perspective’. 

18 Klare 1998:172. 
19 Fraser 1985:31. Nancy Fraser, writing to describe critical theory is quoted as saying, “critical theory is a 

theory that frames its research programme and its conceptual framework with an eye to the aims and 
activities of those oppositional social movements with which it has a partisan though not uncritical 
identification.” My approach aligned to this line of thought. See also Waldron 2007:12 - Jeremy Waldron 
bemoaningly reflects that; “The paraphernalia of thoughtlessness is legion. Clichés and jargon, stock 
phrases and analogies, dogmatic adherence to established bodies of theory and ideology, the 
petrification of ideas – these are all devices designed to relieve the mind of the burden of thought, while 
maintaining an impression of intellectual cultivation.” 

20 Ndebele 2013:82. See also Botha 2007 in Van Marle 2009:286-301- to reflect on the underlying power 
dynamics that influence our approach to property relations while also acknowledging that, like every 
other account out there, what I will likely provide as critique or response is flawed. 



 

 

6 

 

In this section, I set out the analytical background to the chapters that follow. I identify 

and outline the factors that I believe stand in the way of achieving secure land tenure. 

This unavoidably leads to a postulation about what constitutes secure land tenure in 

the context of an unlawful occupier who remains on land that belongs to someone else 

after a court denies an eviction application because it would not be just and equitable 

to evict. I outline how, in seeking to reconcile different interests, the operating legal 

framework adopts neutrality and universality, which tends to favour an approach to the 

law that confirms, or at the very least acquiesces with the status quo.  

The focus here is as much on the inadequacies in law as it is on the inadequacy of 

law in the hands of an unassuming agent who has to interpret and apply it. It is also 

the extent to which the courts (agency) exert an anti-transformative influence in their 

work by not considering and adjusting the anti-transformative elements of 

“professional sensibilities, habits of mind, and intellectual reflexes” while attempting to 

achieve transformative outcomes in their decisions.21 My focus in this regard is not so 

much on the anti-transformative work of those that apply the law as on what makes 

them  apply the law the way they do. The point of departure is, in part, a reconciliation 

with what Wilson points to as a liberal tendency that posits an epistemological scheme 

within which law is wielded by a fundamentally asocial individual standing outside the 

field to which the legal instrument is to be applied.22 It is also an acknowledgement 

that those who wield the law are part of society and therefore not at all immune to its 

limitations.23 It is partly to comprehend lawyers' and adjudicators' approaches to law 

as approaches that do not reflect absolute impartiality or a lack of outside influence.24 

In the case of South Africa, I argue that underlying power relations influence partiality 

and interest, leading to the entrenchment of the will of those who have, i.e., the status 

quo. I now proceed to add nuance to this argument. 

The South African Constitution has been described as an instrument to facilitate a 

“transition from these grossly undesirable elements of the past to a starkly different 

 
21 Botha 2007 in Van Marle 2009:286-301. 
22 Wilson 2021: 24-27 - Wilson puts up an affront that the “Law is not a lever with which it is possible to 

move the world from the outside. Law is the lever, the world and the person who pulls it all at once.” 
23 Moerane 2003:965-968. 
24 Gordon & Bruce 2016:11; Klare 1998. 



 

 

7 

 

future.”25 This future is one represented by a ringing break with the past which 

perpetuated inequality and irrational discrimination and arbitrary government and 

executive action;26 a change in the status quo by establishing a new order;27 and a 

commitment to transform our society into one in which there will be freedom, equality, 

and human dignity.28 In this high sounding description, an undesirable past and a 

related postulation of a future that is the opposite of that past are implicit.29 

While the commitments the Constitution endorses are laudable, its autonomy, 

structure, language, and universality have been condemned for fostering rupture and 

natality, forging a new and unconstrained future, a future not bound to the past.30 The 

euphemism of natality and rupture used in this regard draws me to a familiar African 

custom of “imbeleko”. Imbeleko is a traditional ceremony in which a new-born baby's 

umbilical cord and afterbirth are buried (planted) on ancestral lands as a way of 

connecting the new-born baby to both living and deceased family members. Unlike in 

the Constitution, the emphasis in “imbeleko” is on moving away from the event of birth 

as the determinant factor in who belongs and who does not. The emphasis is on a 

shared life that predates birth. Indeed, my understanding is that the constitution's 

drafters do not display this insight, at least not on paper. The final certification process, 

with all its paraphernalia, is viewed as foundational to a shared life that does not 

predate the certification event and in that way does not predate birth in the way that 

the “imbeleko” rite envisages.31 The concept of a “post-apartheid” nation impressed 

upon in this regard has been criticised in modern South Africa.32 This criticism raises 

two concerns. The first is that by supposedly accounting, if only partially for the past, 

the constitutional state considers the conflict and subsequently the struggle for interest 

 
25 S v Makwanyane and Another 1995 6 BCLR 665: para 262. 
26 S v Mhlungu 1995 3 SA 867. 
27 Du Plessis and others v De Klerk 1996 5 BCLR 658 (CC): para 157. 
28 See also Soobramoney v Minister of Health KwaZulu Natal 1998 1 SA 765 (CC): para 8. This affirmation 

supports the idea that these values did not underrun the previous dispensation something which the 
Constitution itself does not explicitly state. 

29 See Pieterse 2004:411–412; Bilchitz 2003; Wesson 2004:284; Bilchitz 2007; Moyo 2013. See 
Government of the Republic of South Africa and Others v Grootboom and Others 2001 1 SA 46 (CC) 
(hereafter Grootboom): para 20.  

30 The present Constitution has been criticized for failing to be both forward and backward looking, as seen 
by its failure to properly recognize 'Apartheid,' the past (the socio-political and economic status quo) it 
denounces and seeks to break from in its wording. See Sibanda 2011:482. See also Madlingozi 2017. 

31 I trace the history of property relations in South Africa in Chapter 2. That chapter's goal is to connect the 
past to the ongoing challenges of insecure land tenure. 

32 I do not intend to wade into a discussion on this strand of criticism but to note its existence in so far it is 
relevant to the point being made.  



 

 

8 

 

dominance to be over. The second, is that the artificial end to an interim transition 

prompts the closure and erases the legitimacy of claims against the past.33 

How does this become an anti-transformative inadequacy? I contend that a 

Constitution that does not define in unambiguous terms the past that it seeks to break 

from, is more likely to result in a new “old.”34 Without a doubt, the first challenge that 

comes to mind is, how can we objectively assess the Constitution's effectiveness in 

breaking with the past, if it does not unambiguously name and define that past that it 

seeks to break from? What is the Constitution’s true reference point? The second 

challenge, related to the first, is that the Constitution has resulted in a value-based 

democratic system. The promotion of such values in a society with multiple and 

disputed histories, I contend, can never be uncontested or free of dispute.35 This 

contestation invites discourse on how these values should be interpreted. The 

discourse envelops a struggle for dominion over the past, the past as a conduit for 

defining society's most pressing needs and demands, as well as responses.36 In so 

many ways, Mattera portrays this struggle for control over the narrative that defines 

the past, the past as conduit to define the most urgent demands of the present;37  

 
33 See Kesselring 2016:129. “By defining a category of victims and paying reparations to all that fall in the 

category, government does not only provide resources to a select few; it attempts to define and provide 
the public good of a post conflict politic; See Ramose 2007:320; See also Van Marle 2010:357.  

34 See Madlingozi 2017:123 Modiri 2018:300 and Dladla 2018;415. 
35 See Kontopodis 2009:5-10 - puts this point into perspective by linking the relationship between ongoing 

memory practices and the (re)production or (re)enactment of pasts and futures. Kontopodis emphasizes 
the ability of gateways, (such as the Constitution in this case) to allow for the erasure and/or 
exaggeration of history because they are part of ongoing memory practices, especially in a society like 
South Africa where a plethora of pasts, present, and futures compete for legitimacy. See also Santos 
2004. The argument raised is that the understanding of the world and the way it creates and legitimates 
social power has a lot to do with the conceptions of time and temporality. 

36 See Fraser 1989:291-297- “… is a site of struggle where groups with unequal discursive (and non-
discursive) resources compete to establish as hegemonic their respective interpretations of legitimate 
social needs. Dominant groups articulate need interpretations intended to exclude, defuse and/or co-
opt counterinterpretations. Subordinate or oppositional groups, on the other hand, articulate need 
interpretations intended to challenge, displace, and/or modify dominant ones.” The ultimate goal, 
according to Brand is to 'domesticate' poverty and need issues by neutralizing the moral and legitimacy 
imperative in favour of domestication - by defining poverty and need concerns as domestic rather than 
political, as a personal failing rather than a system failing. 

37  Mattera 2009. The destruction that apartheid inflicted on the youthful, intelligent, radical, and Black 
urban culture that was then taking shape is best illustrated by the story of Sophiatown. The effort to 
destroy Sophiatown is a reflection in numerous ways of the effort to eliminate the material and esoteric 
interests of the marginalised. For my purpose, I particularly highlight the attempt to intensify the 
devastation past the point at which a conceivable return to the Sophiatown of old through a counter-
false memorialization of Sophiatown to which Don Mattera excepts to. 



 

 

9 

 

“Gone 

Buried 

Covered by the dust of defeat— 

Or so the conquerors believed 

But there is nothing that can 

Be hidden from the mind. 

Nothing that memory cannot 

Reach or touch or call back.” 

 

The concern here is that standard measures introduced by the operating legal 

framework governing eviction from land such as non-arbitrariness, reasonableness, 

and justness and equitability are value-laden tests. These tests demand an interpreter 

to reconcile with his/her own personal and professional sensibilities, aside from the 

ordinary meaning of provisions and the purpose of the text as composite tools of 

interpretation, to make the implicit, explicit.38 My contention is that the gravitation 

towards the status quo is by default when underlying power dynamics influence the 

direction of the discourse, where such discourse in turn influences personal and 

professional sensitivity to open-ended values. The gravitation towards the status quo 

may manifest itself in the intellectual despondency to push legal materials beyond their 

initial impression of constraint.39 For my purposes, the despondency manifests as an 

unwillingness to define and confirm the legal position of an unlawful occupier who 

 
38 See Liebenberg 2005:143 - A culture of justification is meant to translate constitutional values such as 

that of human dignity, into rights of real people to real things as opposed to generalised, collective 
guarantee to reasonable policies that does not realise actual participation but merely fulfils the 
guarantee of an opportunity to participate in property relation. 

39 For the different kinds of plausible manifestations of this anti-transformative despondency. See Klare 
1998:147, relying on Kennedy 1997; Kennedy 1996; Kennedy 1991:83; and Kennedy 1986; Van der 
Walt 2002c, relying on, amongst others, Cover 1986 and Cover 1983 in Brand 2009;46-72.  



 

 

10 

 

remains on another’s land after an eviction action has been denied by a court on the 

substantive grounds that eviction would be unjust and equitable.40 

Two arguments are worth revisiting in this context.  

Texts, according to Klare, do not generate meaning on their own because constraint 

is not an intrinsic attribute of the materials. While I contend in this thesis that the 

Constitution itself is replete with limitations, constraint also arises from a sensory 

experience of the contents mediated by context, professional codes and sensitivities, 

and the interpreter's ability, as well as choices about how intellectual energy and 

resources are directed.41 This, in turn, leads to the conclusion that legal interpretation, 

and hence the adjudication process, is influenced by political considerations in at least 

two ways. To begin with, legal work - the interpretive activities that judges, advocates, 

and commentators participate in - partially constitutes legal materials, acquainting 

them with value-laden meanings. Indeed, lawyers' perceptions of what materials are 

relevant to a given legal matter are shaped by their profession. Second, judges and 

other legal practitioners make conscious and unconscious decisions about how to use 

their intellectual energy and resources on a regular basis. Because these decisions 

are made in response to apparent gaps, conflicts, and ambiguities in the legal 

materials, they are based on values, perceptions, and intuitions that are not based on 

the legal contents.42 As discourse on property relations envisions a tension between 

two opposing interests, both with counter-related purposes of retention for those who 

already have and attaining for those who were previously unable to attain, this facet 

of constraint is worth looking into.43  

Recognizing this development necessitates admitting that the Constitution has created 

new opportunities for an interaction that did not exist prior to its adoption. Likewise, 

admitting that the Constitution has provided an opportunity involves acknowledging 

 
40 See Coggin 2021:1-38. The notion that Higher Courts either skim over the question or treats an 

entitlement as self-evident. 
41 Klare 1998:160-171. 
42 Klare 1998:160-171.  
43 Terreblanche 2002:14-21. Terreblanche notes the social and economic history of South Africa has been 

one of unequal distribution of power due to about the three hundred years of racial domination prior to 
the changes of the 1990s, but also argues that it now continues due to coalition of white economic and 
black political elites who have been able to gain entry to the strata of influence and instead of opening 
the proverbial window of opportunity they have been co-opted to exclude those on the outside. 



 

 

11 

 

that an opportunity remains just that, an opportunity until it is exploited through agency 

and steered in a specific direction. Wilson argues that if the law generates, extends, 

or contracts chances for action, the law's role in effecting change is at best 

secondary.44 Wilson backs up his claim by pointing out that it is unreflective to point to 

the lack of correlation between legislative reforms and court victories on the one hand 

and the resultant changes in the lives of individuals who claim such outcomes.45 The 

suggestion is that the law creates space for agency, those who agitate and operate 

within the law, taking advantage of the chances it provides, are the ones who bring 

about change. This is not to minimize the importance of the law as a foundation in all 

of this - changes would be impossible without the law and the space it creates.46  

Accordingly, litigation and court decisions present a chance to examine agency as well 

as a foundation for contemplating how to reimagine agency, which is plagued with 

limitations of its own. These constraints, which are also related to and in part as 

a result of an implicit textual foundation, must be taken into consideration in the 

recreation, reinterpretation, and reinforcement of socio-economic rights as individual 

rights. It is on this basis that those without rights to land may receive immediate, 

meaningful, and potentially self-sustaining relief.  

Wilson contends that traditional interpretations have placed too much emphasis on the 

formation of space and not enough on what occurs within it.47 As a result, he maintains 

that those who operate within the space, through the way they frame their arguments, 

accelerate, or defer the breadth and scope of change, even if the law allows for 

something more, and therefore such ought to be accounted for, if only to maintain the 

space's inviolability.48 

 
44 Wilson 2021:4-10. 
45 Wilson 2021:4-10. 
46 Mureinik 1994; Van der Walt 2001:258; Le Roux 2006:634; See Woolman et al. 2008:32-80. Mureinik 

describes the Constitution as constituting "a bridge in a divided society, "The bridge metaphor, 
according to Van der Walt, provides for another interpretation in which "the bridge is not only a means 
for traveling from one area to another," but rather a function that is tied directly to the journey it sets out 
to undertake.  Such that “it is not the bridge itself that is significant, but the act of bridging, of linking the 
past and the future, reality and imagination, in order to create new ideas in the present.” There by 
creating a space in which competing interests can participate in the content building of the past, present, 
and future. 

47 Wilson 2021:1-15.  
48 Wilson 2021:1-15. 



 

 

12 

 

This would no less require a change in approach to one that sees property rights 

litigation and adjudication as a unique window of opportunity - an opportunity that is 

better amenable to and capable of causatively contributing to the modifiability, and 

reconfiguration or breaking down, of the structural constraints outlined above.  

Simply put, the logic here is that the participation that may be leveraged for persons 

without rights to land by such litigation allows them to enter the property market 

(become property insiders) and use their insider status to deconstruct the property 

rights structure that makes participation difficult notwithstanding that is implicit in the 

constitutional text. To borrow and extend from the argument on the need for the 

inclusion of socio-economic rights in the Constitution as a basis for equal social and 

political participation: I advance the view that simple and formal equal opportunity, 

which requires nothing more than a guarantee of an opportunity for anyone who is 

able to take advantage of it, is insufficient. The guarantee of an opportunity must also 

include the conditions that allow for actual and equal participation by those to whom 

access is promised.49 That is, the opportunity to influence and control the discursive 

and non-discursive interpretive narrative is available to everyone, but those without 

property (outsiders) are unable to take advantage of this opportunity. To be without 

property means having no status in society, no right to participate in discussions, and 

no ability to shape the laws governing that participation in a certain way.50  

As a tool of analysis, I incorporate the theoretical approach as briefly outlined above 

in the chapters to follow. 

 

1.3 Motivation  

Since I began critically engaging South Africa's constitutional dispensation in relation 

to property rights, two things have always stood out to me. The first is what I term “the 

superficial give”, a constitutional pledge to promote the acquisition of new rights to 

land by those who for one reason or the other could not acquire such rights to land 

 
49 Haysom 1992:450-461. 
50 Wilson 2021:1-15. The extent to which the nature and structure of property rights is inclusive being a 

key element to ensuring that social participation is upheld in all spaces. In this regard the African proverb 
that says, “A man who drives his father’s car (beholden to another) is not entitled to speak in a council 
of men who own bicycles (beholden to no other)” comes to mind (own emphasis). 



 

 

13 

 

while simultaneously protecting the existing rights of those that had directly or 

indirectly benefitted from the unjust exclusion of others from the property system prior 

to the current dispensation.51 The second is what I call ‘the superficial take”, prompted 

by a proviso allowing for the redistribution of property rights through expropriation, 

however, provided that where expropriation ensues it is accompanied by just and 

equitable compensation.52 Simply put, my fixation with the Constitution is based on 

the notion that, in a society with finite resources and against the backdrop of South 

Africa's history of dispossession, the Constitution sets out to protect and conserve the 

position of those who have land while simultaneously advancing the position of those 

who do not have land, to gain access to land. All the while without intentionally taking 

the excess from those who have and giving to those who do not.53 

Sachs AJ, as he was then, highlighted the impact of this notion in Port Elizabeth 

Municipality v Various Occupiers,54 (hereafter PE Municipality); 

 

“The Constitution imposes new obligations on the courts concerning rights relating to property 

not previously recognized by the common law. It counterposes to the normal ownership rights 

of possession, use and occupation, a new and equally relevant right not to be arbitrarily 

deprived…” 

 

Prior to the Constitution imposing a new and equally important right not to be arbitrarily 

deprived, the relationship between those who have and those who do not have title to 

land was rooted in a tradition that gave a private owner the unrestricted right to exclude 

all else through the rei vindicatio.55 As a result, the current Constitution is viewed as 

 
51 Sec. 25 of the Constitution. See Walker 2008 for a full discussion on the complex history of not only 

dispossession but also social change: see chapter 2 below. See also sec. 26 of the Constitution- which 
aims to protect and guarantees the right of access to adequate housing, which can be interpreted as a 
right to not be without it. 

52 Sec. 25 of the Constitution. 'Just and equitable compensation' has long been associated with 'market 
related' compensation, which, in my opinion, ignores the element of loss. As efforts to retain sec. 25 
compete with those to revise and create express provision for expropriation 'without compensation,' the 
little-known synonym 'nil compensation' has entered the discourse. It remains to be seen whether this 
will obtain in practical cases. For a full discussion see Sibanda 2019. See also Lubbe & Du Plessis 
2021. 

53 See Underkuffler-Freund 2003:1033-1046 - wherein property law is described as the chosen method to 
reward the claims of some people to finite and critical goods, and to deny the claims to the same goods 
by others. 

54 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) (hereafter PE Municipality).  
55  See Muller 2013:367-396. Van der Walt 2009:60-66. 



 

 

14 

 

demanding a different approach. It demands an approach that promotes balance 

between ownership interests and non-ownership interests on a far more level playing 

field whenever these interests intersect.56 This intersection has been most apparent 

in cases of eviction.   

The legislative framework regulating evictions stipulates that a court may only make 

an eviction order if it is “just and equitable” in light of all relevant facts, including, but 

not limited to, factors specific to the landowner and the potential evictee.57 The “just 

and equitable” consideration has seen the emergence of different variations of eviction 

orders, each with and without conditions attached thereto. In this thesis, I focus on 

three distinct forms of these eviction orders. The first of these are orders in which the 

court grants an eviction application and then suspends the order, enabling unlawful 

occupiers to continue on land belonging to another while the suspensive condition is 

in place. The second, is an instance in which a court orders an eviction, but for 

whatever reason, enforcement becomes impracticable, resulting in unlawful 

occupants remaining on land belonging to another until a solution is found. The third, 

in which I find interest, are those instances where a court denies an eviction application 

on the ground that it would be not just and equitable to evict thus enabling unlawful 

occupiers to remain on land that belongs to someone else. 

Traditional accounts have thus far, with a few exceptions, concentrated on the 

interaction between the rights and obligations of owners and holders of other common 

law rights, as well as the state, where appropriate.58 Instead of following that trend, in 

 
56 The notion of balance strikes a positive chord of change however it should be viewed as not to imply 

that one of two competing rights will always triumph over the other. This is because it seeks to equalize 
and hence sustain both positions even though there may be a strong reason for the ownership right to 
entirely cede to a non-ownership right. This position I argue later, further entrenches insecure land 
tenure. See reasoning in Botha 2003:34. See also Botha 2002:612, Botha 2004:249 and Botha 
2000:561. See also Van der Walt 2001 where the characterisation of the battle between two outlooks, 
privilege vs change, protective vs demanding, rights vs needs, rule of law vs justice, security vs 
transformation as static and of no positive value is proffered. 

57 See sec. 26 of the Constitution. See also the preamble to the Extension of Security of Tenure Act 62 of 
1997 (hereafter ESTA) provides: “To provide for measures with State assistance to facilitate long-term 
security of land tenure; to regulate the conditions of residence on certain land; to regulate the conditions 
on and circumstances under which the right of persons to reside on land may be terminated; and to 
regulate the conditions and circumstances under which persons, whose right of residence has been 
terminated, may be evicted from land; and to provide for matters connected therewith.” The relevant 
circumstances pondered here are espoused in Section 8(1) which make it clear that fairness plays a 
key role. Sec. 10(3) and sec. 11(3) of ESTA. See also sec. 4(6) of the Prevention of Illegal Eviction from 
and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE). 

58 Wilson 2021; Van der Walt 2002a; Van der Walt 1995; Du Plessis 2013.  



 

 

15 

 

this thesis I urge more consideration to the interactions between private property rights 

and the interests of people with no legal right at all as is the case in the instance when 

a judge decides not to evict an unlawful occupier for “just and equitable” reasons.59 

The state of affairs therein sees the occupier who is without a right to continue to be 

on land belonging to someone else nonetheless enabled to remain on such land as 

the court which is tasked to sanction evictions by law has declined to do so. This state 

of affairs presents a unique case in point. 

The primary purpose of this thesis is thus to explore and define the legal position of 

occupiers who remain on land that belongs to someone else after an eviction 

application has been denied by a court of law on “just and equitable” grounds. I take 

on this task in this thesis because the courts have thus far not sought to legally define 

and explore the nature of such a continued stay on land belonging to another. While 

courts have intervened to prevent evictions that would result in unjust and inequitable 

results, the failure to address the terms and conditions of such a continued stay 

undermines the legitimacy and security of tenure of such individuals. This failure is 

also indicative of the broader issue that requires further attention, that I set out above. 

 

1.4 Methodology and approach 

This study's nature necessitates a literature-based analysis of primary and secondary 

sources, with the former involving the use of (analysis and/or discussion of) pertinent 

case law and legislation and the latter involving a discussion of pertinent books, 

academic papers, and articles. Case law and legislation will be primarily used to 

demonstrate how the courts have come to deny an eviction claim on just and equitable 

grounds. It will also enable one to determine the efficacy of such an order and the 

commitment of the courts in realising the security of tenure of not only those without 

rights to land but relatedly those whose land is occupied unlawfully. It is therefore 

crucial to analyse these sources in order to posit what this instance of unlawful 

 
59 I am aware of two accounts that have dealt with this interaction in an analogous way; however, I 

acknowledge that there may be others that I am unaware of at this moment. See Van der Walt 
2012b:157 and Brand & De Villiers 2021.  



 

 

16 

 

occupiers remaining on land belonging to another means for all parties involved and 

the role for the courts in realising effective relief for all parties involved. 

My approach to my subject matter, which I will broadly term critically transformative, is 

already outlined above in my discussion of the broader issue informing my 

engagement with my research problem. 

 

1.5 Qualifications 

It is important to stress the points that I do not make in my thesis. I do not make the 

point that South Africa's property relations have remained unchanged since 1994. No 

one can dispute that the constitutional dispensation has corresponded with changes 

in South Africa's political, social, economic, and cultural landscape, as tempting as 

that may be. The past was less kind, the present is kinder than the past, and the 

objective is to make the future the kindest. However, I do make the point that such 

changes have not gone far enough to create a new equal society. 

South Africa, I submit, is a society undergoing complex and systemic transitions at 

many levels of its existence. These transitions are marked by a desire to create a 

“new”, a new way of doing, knowing, and seeing that requires the tough act of stepping 

outside of oneself as an embodiment of the restrictions that necessitate transition in 

the first place. I make the point against a simplistic interpretation of South Africa's 

past and present that animates the novelty of the new South Africa - an approach to 

the “new” that assumes and accounts for no continued prejudice on the present by the 

“old”.  I do not make the point that the transformative constitutional project is a project 

in futility. I accept that this project frames transformation as a non-ending process. 

In terms of the relation between law and power dynamics in the context of South Africa, 

I do not seek to reduce the law to the subservience of vested economic and social 

interests, nor to the polity of those who operate inside it. I merely identify conservative 

influence, fully aware that these are only just some of many other factors to consider. 

Concerning the main research problem, I do not wish to imply that this thesis will 

present an entire and infallible analysis of the topic. Instead, I only hope to draw 

attention to and add to a discourse that will develop in the future. 



 

 

17 

 

The method that I propose to use is that of desktop research. This methodical 

approach requires obtaining information from both published and unpublished 

sources. It is based on secondary sources of information that have previously been 

gathered and are easily accessible from other sources. Newspaper articles, statutes, 

acts, and court cases are also employed as documentary sources. 

 

1.6 Overview of thesis  

Apart from this introductory chapter, this thesis consists of five chapters.  

In Chapter 2, I seek to establish what constitutes the “just and equitable” consideration 

in the context of eviction. I build on the general backdrop provided in Chapter 1 by 

examining the pre-constitutional and constitutional-era development of eviction law. I 

do this on a broad scale, before narrowing down to developments that outline the 

substantive requirement of justice and equity. 

In Chapter 3, I highlight the instances in which a scenario of unlawful occupiers 

remaining on land that belongs to someone else despite not having a countervailing 

right to do so arises. Furthermore, I distinguish between instances where the fact of 

remaining is not that which founds the subject matter of this thesis. That is, cases in 

which an occupier remains on another's land as a result of an eviction order that has 

been granted, with the order executable on a future date and/or where the order fails 

to be executed on that date, as well as cases in which an eviction application has been 

denied on the grounds that eviction would be unjust and inequitable to evict. 

In Chapter 4, I explore the potential normative legal character of a position in which an 

unlawful occupier remains on another's land after an eviction application has been 

denied on the grounds that to evict would be unjust and inequitable. In Chapter 5, I 

draw on the debate from Chapter 4 to consider the legal repercussions of the position's 

assumed legal nature on the landowner’s right to exclude. 

In Chapter 6, I summarise the previous chapters' conclusions, offering closing 

remarks. 

  



 

 

18 

 

CHAPTER 2  

ESTABLISHING THE HISTORICAL AND LEGISLATIVE CONTEXT IN 

WHICH A CLAIM OF AN UNLAWFUL OCCUPIER TO REMAIN ON 

PRIVATE PROPERTY ARISES 

 

“Poetry never stood a chance of standing outside history 

…  

Suppose you want to write  

of a woman braiding another woman’s hair-  

straight down, or with beads and shells in three strand plaits or corn rows-  

you had better know the thickness  

the length the pattern  

why she decides to braid her hair  

how it is done to her  

what country it happens in  

what else happens in that country  

You have to know these things 

… 

I am thinking this in a country 

where words are stolen out of mouths 

as bread is stolen out of mouths 

where poets do not go to jail 

for being poets, but for being 

dark-skinned, female, poor.  

I am writing this in a time  

when anything we write  

can be used against those we love  

where the context is never given  

though we try to explain, over and over  



 

 

19 

 

For the sake of poetry at least  

I need to know these things.”60    

 

2.1 Introduction  

In Chapter 1, I outline the primary research problem as one of insecure land tenure 

arising from the undefined legal position of unlawful occupiers who remain on land 

belonging to another in instances where an eviction application has been denied on 

the grounds that it would not be just nor equitable to evict. I outline, in addition, the 

challenge posed by an acontextual set of laws and legal approach, and how such 

acontextuality can in the face of other pressures, over time, lend itself to the 

preservation of insecure land tenure.  

Adrienne Rich demonstrates in many of her works,61 how society's influence over race, 

gender, and class (the cyclical interrelation of politics with law and of law with politics) 

have resulted in a loss of imagination. North American Times, with which I have 

chosen to begin this chapter, highlights the challenges of identification (recognizing 

yourself in connection with others of your own race, gender, and class) and 

interpretation (making sense of one's own identity in relation to other people's 

identities) in a unique way; for the truth of history is liable to distortion, and the context 

of writing (memory) becomes blurred with the passage of time, to the point where 

“everything we write can be used against those we love.”62 

I am writing about the perpetuation of insecure land tenure, perpetuation characterized 

by law and law’s approach to evictions from land. Should I know better, as Rich puts 

forward, where such insecurity emerges, when and how it started, and why; and who 

started it? What country it occurs in and what else takes place there?  

The highlight of the legislation that now governs evictions in South Africa is in its deep-

seated concern for interests associated with owning land on the one hand, and 

 
60 Rich 1983. For the purposes of this chapter, I have chosen to use only the stanzas that I find compelling, 

and not the entire poem. 
61 See Rich 1977 and Rich 2013. 
62 Rich 1983.  



 

 

20 

 

occupying land on the other.63 This concern is, in part, predicated on the need to 

ensure that individuals are not evicted from land without an alternative and that 

landowners' interests are not taken away without due cause and process.64 Envisioned 

here are three elements. The first is the necessity to prevent people from being 

evicted. The second is that landowners should not be deprived of the rights that come 

with being a landowner. The third, and most significant, qualifies the first and second, 

speaking to the need to reconcile the first and second. It is an element that seeks to 

balance the loss element inherent in the meeting of two divergent interests. It is out of 

this third element that the notion of being just and equitable finds space as a 

requirement in evictions.  

The term “just and equitable” refers to both interests; that is, what is just and equitable 

for the landowner as well as for those who are in unlawful occupation.65 This is an 

internal consideration. The term “just and equitable” also “demands a break away from 

a purely legalistic approach and regard to extraneous factors such as morality, 

fairness, social values and implications and circumstances.”66 This is the external 

consideration; a consideration that demands an understanding of the broad set of 

rights and institutions that govern who has access to, uses, and controls land.67 In 

other words, the terms and conditions upon which land is owned, used, and traded.68 

It further requires recognition, “…in a country where words are stolen from people's 

mouths as food is stolen from mouths”,69 of the impact of unequal power relations in 

limiting equal access to being heard and, through being heard, to be seen, to have 

one's unique challenges (existence) understood, highlighted, and addressed. That is, 

it demands of us to keep in mind that “poets do not go to jail for being poets, but for 

being dark-skinned, female, poor.”70 

At face value, the above breakdown of the legislation governing evictions is nothing 

short of a progressive stance aimed at taking account both the interests and rights of 

 
63 PE Municipality: para 14-23. 
64 Ibid.  
65 PE Municipality: para 33.  
66 Ibid.  
67 Hall 2003:3. 
68 Hall 2003:3.  
69 Rich 1983. 
70 Rich 1983. 



 

 

21 

 

those with and those without property. It stands to envisage a humane approach 

replete with safeguards to ensure that all interests are considered before one is 

evicted.71 However, such provisions must be interpreted against the historical context. 

This historical context informs the demand for the orderly restoration or opening-up of 

secure property rights for individuals who had previously been denied access to or 

deprived off them.72 The provisions also need to be interpreted against the current 

context, which is not unrelated to the historical context: the current context that sees 

the unavoidable tensions that characterize property relations. This tension is between 

individual rights and social responsibilities, the need to protect existing private property 

rights while also serving the public interest, with the future context of creating a more 

equal society in mind.73 Without this context, the just and equitable requirement 

requiring the courts to do what courts are typically supposed to do, namely, consider 

all relevant factors, would appear redundant, if not odd.74 

In this chapter, I provide an account of the historical, current, and future context of the 

legislation governing evictions in South Africa. In section 2.2, I provide a historical 

overview of pre-constitutional legal developments relating to the property relations in 

South Africa. In section 2.3, I provide an overview of the current legal framework 

regulating evictions. This is to enable the assessment of the impact that the historical 

developments have had on the current legal framework. It is also to better place the 

consideration of the internal and external factors that enclave the “just and equitable” 

requirement. In section 2.4, I conclude the chapter by considering the future context, 

namely the imperative to adopt eviction regulation that is appropriate for the equal 

society that is presently being imagined. 

 

 
71 PE Municipality: para 34. Evicted from not only the land they live on, but also from the property system. 

The question then becomes whether the unlawful occupants are actually part of the property system. Is 
South Africa's legal framework for evictions from land based on inclusion or exclusion? Anti-exclusion, 
in my opinion, emphasizes 'not to be without' land, whereas inclusion emphasizes 'to be with land.' I turn 
to the historical and current context to better grasp what the legislation represents in this regard (own 
emphasis). 

72 PE Municipality: para 15.  
73 PE Municipality: para 23.  
74 Ibid.  



 

 

22 

 

2.2 A history of law and displacement: evictions pre-1994  

In Landmarked – Land Claims & Land Restitution in South Africa, Cherryl Walker takes 

a broad look at the country's historical land developments.75 Walker detects at least 

two narratives in this broad approach, one of which she refers to as the master 

narrative: the straightforward account of forced removals.76 Walker argues that, while 

forced removals from land have been a part of the history of land dispossession, this 

narrative is overly simplified and incomplete. It presents the history of forced removals 

during apartheid and before as if it were a linear process rather than a significant 

chapter in a much larger and more complex history of dispossession and social 

change.77 Walker continues by describing the complexity as constitutive experiences 

of 

“.. those who both had land rights to lose and lost them through state (not private) action after 

June 1913, and, on the other hand, those who lost land rights as a result of private actions (e.g. 

farmer-initiated evictions), or by 1913 had no land rights to lose, or had moved off the land in 

search of other opportunities, or today hold only tenuous rights to land in the former 

Bantustans.”78 

 

Indeed, the existing polity of those that stand to remain (unlawful occupiers), 

comprises both those who may have been forcibly evicted from land and those who 

may have not been forcibly evicted from land as envisaged above. To my mind the 

latter is at least as important as violent dispossession for this thesis. People who were 

not forcibly evicted but just lost their legal rights or were unable to secure rights to land 

that they remained on, are more comparable to those who “remain.”  

 As Walker also points out, the latter either did not acquire and hence had no 

land rights to lose or had to move off the land in order to survive (social engineering). 

This thesis focuses on the latter, specifically for the interaction between social and 

economic balances and the acquisition of rights to land that it highlights.  

 
75 Walker C 2008:11-27. 
76 Walker C 2008:11-27. 
77 Walker C 2008:11-27. 
78 Walker C 2008:11-27. 



 

 

23 

 

To recap, my argument is that the law and with it, the legal approach, allows for 

discursive and non-discursive contestation between unequal forces: those with 

interests in sustaining the status quo on the one hand (stronger), and those with 

interests in changing the status quo on the other (weaker). The law, and with it the 

approach to law, lends itself to the restrictions of considerable change as a result of 

the disproportionate discursive and non-discursive influence of people who may not 

necessarily benefit from the change.  

Utilizing this lens, I now proceed to look at the history of displacement and land 

occupation before the constitutional dispensation was established. 

 

2.2.1 Black land tenure and urbanisation 

Aartsma narrates the early colonial history of the Cape Colony as dated from when,  

 

“A Land was sighted on 5 April 1652 and the ships docked the next day. Within a week of the 

arrival of the three ships, work had begun on the Fort of Good Hope.”79   

 

I find this account interesting for its capture of more than just the sighting of a 

geographical area. It is also interesting because it unwittingly details effort (work) 

intended at what can only be the displacement of what was already there. For my 

purposes, this view of the arrival sets out my departure in my approach to the account 

I give below. My interest is in the physical dispossession of land not only for the actual 

taking away of land or rights to land but also the taking away of land for its symbolism 

of a multi-faceted approach aimed at simultaneously disrupting the intellectual and 

economic resource base required to  reclaim or acquire land.80 By (re)acquire, I do not 

mean taking land from those who have it and giving it to those who do not have. I do 

 
79 Aartsma “Early history of the Cape Colony, South Africa”, www.south-africa-tours-and-travel.com 

(accessed on 29 March 2021); Turton, “A South African Diary: Contested Identity, My Family” “Our 
Story, Part A: Pre-1700, www.anthonyturton.com (accessed on 29 March 2021). 

80 Terreblanche 2002:6. According to Terreblanche, the inequity in South Africa stems from a deliberate 
colonial legal posture in the mid-seventeenth century that saw "white farmers enriching themselves at 
the expense of Black people by creating political and economic power structures that entrenched their 
privileged position vis-à-vis Black people." 

http://www.south-africa-tours-and-travel.com/
http://www.anthonyturton.com/


 

 

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not believe this will address the problem of insecure legal tenure; rather, I believe it 

will merely invert it, if not, first create conflict among the majority over who gets the 

land and who does not.81 In relation to the claim to remain, reacquisition concerns 

reclaiming space to reimagine property relations in both letter and approach—in order 

to resolve the problem of insecure land tenure.  

Below, I go into greater detail about some of the exclusionary statutes that embodied 

the dispossession and displacement set out above. In detailing these exclusionary 

statutes, I contrast rural and urban land tenure. The distinction is used to emphasize 

how the former contributes to developments in the latter, rather than how rural land 

developments lead to the commencement of insecure urban land tenure.  

 

2.2.2 Rural land tenure 

The Glen Grey Act,82 replaced the communal tenure pattern that was widespread 

among African people with an individual tenure pattern. Hall describes this as a 

“significant event in the disenfranchisement of Africans and the curtailment of civil and 

land rights.”83 This was in acknowledgement of communal land occupation as one of 

the tribal organization's most significant underpinnings that had to be undone.84 More 

so,  in view of the communal system's inextricable link to the tribal group’s integrated 

and sustainable livelihood.85 While it was argued that through  the shift from communal 

to individual occupation, individuals were able to participate in free economic action 

without being constrained by tribal custom,86 this development dismembered and 

 
81 Walker uses Anna Bohlin's concept of viewing one’s relation to land through the dynamic prism of 

experiences, context, public discourse, social location, and time. For a full discussion see Walker 2008. 
See also Bohlin 2010. 

82 Act 25 of 1894. 
83 Hall 2010:75. 
84 Wiggins 1929. 
85 See also Worden 2000:54-75; Rhodes “Speech at the Second Rereading of the Glen Grey Act to the 

Cape House Parliament (30 July 1894)”, https://www.sahistory.org.za/archive/glen-grey-act-native-
issue-cecil-john-rhodes-july-30-1894-cape-house-parliament (accessed on 21 February 2022). “Every 
Black man cannot have three acres and a cow, or four morgen and a commonage right. We have to 
face the question, and it must be brought home to them that in the future nine-tenths of them will have 
to spend their lives in daily labour, in physical work, in manual labour. This must be brought home to 
them eventually.” 

86 Rhodes ‘Speech at the Second Rereading of the Glen Grey Act to the Cape House Parliament (30 July 
1894)’,https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rhodes-july-30-1894-
cape-house-parliament (accessed on 21 February 2022). 

https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rhodes-july-30-1894-cape-house-parliament
https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rhodes-july-30-1894-cape-house-parliament
https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rhodes-july-30-1894-cape-house-parliament
https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rhodes-july-30-1894-cape-house-parliament


 

 

25 

 

isolated the African from his or her way of life (identity), economic, intellectual, and 

social resource base. 

The Natives Land Act was passed by the union government in support of the Glen 

Grey Act.87 The Natives Land Act created the basis for territorial segregation and 

apartheid. For the first time, formally defined restrictions on black land ownership 

created a complete legal barrier between landholding by blacks and non-blacks.88 Sec. 

1(1)(a) forbade, for instance, black persons from acquiring a right to, an interest in, or 

servitude over land that is not “traditional” land through a sale, lease, or other 

acquisition.89 Sec. (1)(1)(b) stated that outside of these “traditional” boundaries, black 

people could only have a right to, interest in, or servitude over land owned by another 

black person.90 Africans had exclusive usage and purchasing rights to “scheduled” 

native lands.91 The Natives Land Act further declared that any arrangement reached 

outside of the scope of sec. 1(2) was null and void from the beginning.92  

In sum, the Natives Land Act codified a “dispossession that had begun far earlier, 

centuries earlier,”93 at least as early as the Glen Grey Act. The Glen Grey Act thus 

endeavoured to dismember and isolate Africans for subsequent easy dispossession 

under the Natives Land Act and beyond. According to Bundy,94 the Natives Land Act 

set-off the conditions and criteria under which future struggles between landowners 

and occupiers would be fought.95 The context upon which persons like those who find 

themselves on land that belongs to someone else would struggle to remain, would be 

defined. 

 
87 Act 27 of 1913. The Natives Land Act established apartheid and territorial segregation, shaping 

boundaries on black land ownership for the first time. 
88 See Davenport 1990:433-440. Robinson 1997:472. For a discussion of the historical context of the 

Natives Land Act, see Wickins 1981:105-129; Feinberg 1993. For a general discussion of land initiatives 
between 1913 and 1948, see Feinberg 2009; Feinberg & Horn 2009. 

89 Feinberg & Horn 2009:41-60.  
90 Feinberg & Horn 2009:41-60. 
91 Natives Land Act: sec. 1(2). 
92 Natives Land Act: sec. 1(4) & sec. 5(1) Any arrangement made in violation of this prohibition was invalid 

from the start, and punishable by a fine or imprisonment for up to six months with or without hard labour. 
93 Osorio “100 years since the Native Land Act: an interview with Ben Cousins”, 

https://www.groundup.org.za/article/100-years-nativeland-act-interview-ben-cousins1048 (accessed 
on 30 September 2021). 

94 Bundy 1990:6. 
95 Bundy 1990:6.  

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As a result of their exclusion, the black majority were forced into large expanses of 

desolate land set aside for black occupation – “the reserves.”96 In South Africa, 

reserved land accounted for barely 7% of the country's habitable land.97 Those that 

“remained” because they had nowhere else to go, enslaved themselves as labour 

tenants on black farms that had been converted to white farms. I stop to ponder 

whether this has changed. 

The Act made it illegal for white landowners to enter into sharecropping arrangements 

with Black farmers, Black farmers were left with no livelihood.98 The reserves 

represented the congregation of those who both had land rights to lose and lost them 

through state (not private) action. It also represented those who lost land rights as a 

result of private actions and those who had no prior land rights to lose and could not 

acquire such rights. For my purposes, the reserves also represented a metaphoric 

contemptuous holding of alienated black interest in not only the physical territory, but 

also in participatory space: the space within which to participate in and make/influence 

decisions on the regulation of property, and through property, one's own economic 

and social existence. 

The Natives Land Act was furthered by the Development Trust and Land Act,99 paving 

the way for the formation of the South African Development Trust (the Trust). The 

principal purpose of the Trust through the Act was to regulate the holding and transfer 

of more land to Black people through leases or government sanction.100 The Trust 

bought and owned the land. For the often-abused sake of promoting public welfare or 

acting in the public interest to achieve the goals of the Act, sec. 13 of the Act 

 
96 Bundy 1990:6. 
97 Bundy 1990:6. See also Rugege 2004:283-321 puts this at 8%. 
98 Davenport 1985:61; Davenport 1987:388-400 notes that the Land Act had a crippling effect on black 

agriculture. This form of contract was an agreement between a white landowner and farm employees 
wherein farm workers were allowed access to use a section of the farmer's property for their own 
produce in exchange for specific hours of labour. The Black Service Contract Act 24 of 1932 would later 
alter this. Under this Act, a Black person could stay on someone else's land as long as he or she 
supplied labour in exchange. During the tenure, the Black occupier was allowed to remain on the land, 
erect and/or build structures, grow, and tend to crop. At the termination of such tenure, the occupant 
was required to remove all erected structures and tend to crop that had already been sown, until they 
reached maturity, and then reap and evacuate the land at the conclusion of the tenancy. 

99 Act 18 of 1936. Although section 51 of the Act, as it was gazetted, specifies that the Act should be known 
as the Native Trust and Land Act, it later came to be known as the Development Trust and Land Act. 

100 Development Trust and Land Act 18 of 1936. 



 

 

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empowered the trustees of the Trust to expropriate land owned by natives outside of 

a designated region for reasons of public health or for any other cause.101 

The Trust also decided the nature of access and the rights that could be exercised on 

that land.102 Much more, it has been contended that the establishment of the Trust 

was to develop the “material, moral, and social well-being of ‘natives’ living on Trust 

land.”103 However, the Trust was not in fact a noble endeavour. It arose from a growing 

security concern over the gathering of a threateningly big number of Black people as 

labour tenants on white farms.104 Over time, the Trust was also given the right to 

acquire more land for native settlement. The quantity of land that could be bought rose 

to about 13% of the total national acreage.105  

Outside of the proposed exemptions, any black person who occupied land in 

contravention of these regulations would face not only eviction but also prosecution.106 

An unlawful occupier's eviction was initiated by a written notice requesting that they 

show reason why they should not be evicted.107 Upon failure to adduce “reason”, the 

native commissioner issued a warrant authorizing the police to evict the unlawful 

inhabitants using any means necessary, including force.108 The evicted were resettled 

on land designated for black occupation.109  

 
101 Natives Trust and Land Act 18 of 1936: sec. 13(4). 
102 Haythorn & Hutchison 2014:195: “Vested in the Trust was land reserved for the occupation of natives 

and land within the scheduled native areas as identified in the Natives Land Act. Sec. 6(1) of the Natives 
Trust and Land Act.” See Van der Walt 1991 for a discussion of the scope and content of the Land Acts. 

103 Sec. 4(1) of the Natives Trust and Land Act. Sec. 9(1) of the Natives Trust and Land Act. The Trust's 
regulatory reach was broad enough to include unilateral withdrawal or change of the aforesaid rights to 
occupy. 

104 Haythorn & Hutchison 2014:195. 
105 See Fourie 2000. See also Robinson 1997:475- “The act established ‘reserves’ for Black people and 

enlarged the Natives Land Act's 8% reservation to 13%, restricting 80 percent of the population to this 
territory. The Trust's authority to acquire land was further restricted to land within scheduled native 
areas or reserved regions.” Sec. 10(2) of the Natives Trust and Land Act. Natives were entitled in terms 
of subsec. 11(1) and 18(2) of the Act to purchase, lease or otherwise acquire land in scheduled areas. 
See Van der Merwe 1989a:663-679. Chapter 4 of the Act regulated the tenure of Black people who 
resided on land other than the ‘reserved’ land. In summary, these provisions limited such occupation to 
instances where, the Black man, was according to sec. 26; (a) the registered owner of that land; (b) a 
servant of the owner of that land; (c) a registered labour tenant; (d) a registered squatter; or (e) 
otherwise exempted from the prohibitions contained in chapter 4 of the Act.   

106 Natives Trust and Land Act: sec. 26(4). 
107 Natives Trust and Land Act: sec. 37(5). 
108 Natives Trust and Land Act: sec. 37(1)-(4). 
109 Natives Trust and Land Act: sec. 38. 



 

 

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The further promulgation of the Native Administration Act,110 which provided 

administrative authority to remove Africans from white-zoned property and relocate 

them, exacerbated the exclusion of those who had rights to lose and the 

disqualification of people who desired to (re)acquire rights to land. The resultant 

overcrowding on “reserved” land combined with unfavourable working conditions on 

white farms created an atmosphere that fostered extensive migration to cities.111 This 

added a new dynamic in the evolution of urban land tenure. It is not my contention that 

the developments in urban land tenure did not follow or come before developments 

in rural land tenure. The point I make is, to use an English cliché, to consider urban 

land tenure constraints as independent from those in rural land tenure is to not see the 

wood for the trees. The following historical account and analysis should be viewed and 

read in conjunction with the one given above. I now proceed to deal with developments 

specific to pre-constitutional urban land tenure. 

 

2.2.3 Urban land tenure  

Acts governing urban land tenure, similar to those discussed in the previous section 

were intended to restrict and marginalize Black people’s rights to land in a mutually 

reinforcing way.112  

The Black (Urban Areas) Act,113 for instance, was enacted to ensure that the 

occupation of land would be strictly controlled and that the settlement patterns of black 

people would take place on terms that served white interests.114 To this end, an urban 

local authority could, “define, set aside, and lay out land for the occupation, residence, 

and other reasonable requirements of black people.”115 It could also “define, set aside, 

and lay out any portion of a location or any other land within its jurisdiction where black 

people could lease a lot of land for the erection of houses and huts for their own 

 
110 Act 38 of 1937. 
111 O’Regan 1989:364; Claassens 1990:30-43.  
112 See Madlalate 2019:195-217. 
113 Act 21 of 1923.  
114 Davenport 1969:95. Known as the Stallard principle; “The native should only be allowed to enter the 

urban areas, which are essentially the white mans’ creation, when he is willing to enter and to minister 
to the needs of the white and should depart therefrom when he ceases to so minister.” 

115 Sec. 1(2) read with sec. 2(1) and 3(1) of Black (Urban Areas) Act. For full discussion see Muller 2014. 



 

 

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occupation”, with the approval of the Minister of Native Affairs.116 Anyone who was a 

party to an agreement that intended to bypass sec. 4(1) would be charged with a 

crime.117 All black persons employed by an urban local government were also barred 

from residing in any place other than in locations, native villages, or native hostels.118  

The Black (Urban Areas) Act was augmented by the Slums Act,119 which prohibited 

Africans from obtaining land in metropolitan areas.  

Over time, for practical reasons, the Native (Urban Areas) Consolidation Act,120 further 

established four distinct classes of black urban dwellers, each of which were to be 

granted the permission to be in the city provided that the nature of their work 

demanded it.121 After a period of rapid urbanisation, the government began to impose 

severe influx control measures to keep black people out of “white spaces” and 

confined to the outskirt.122 The presence of black people in these places was always 

seen as temporary and contingent on employment.  

Notwithstanding, Black people progressively began to inhabit vacant land and 

buildings closer to their workplaces. To prevent and control illegal squatting on public 

and private property, Parliament approved the Prevention of Illegal Squatting Act 

(hereafter PISA).123 This Act made it unlawful to remain on land belonging to another 

without a justifiable reason.124 

 
116 Black (Urban Areas) Act: sec. 1(1)(a)- (b). Only Black people were permitted to “engage into any 

agreement or transaction for the purchase” of a right to, interest in, or servitude over land in a particular 
location or native villages. For full discussion, see Muller 2014. 

117 Black (Urban Areas) Act: sec. 4(2).  
118 Black (Urban Areas) Act: sec. 5(1) read with subsec. (2) in respect of the groups of Black people 

exempted from this provision. See also Black (Urban Areas) Act: sec. 6(1) read with subsec (2) - The 
Governor-General could increase this area to a maximum of five miles in terms of s 6(2) of the Act. 

119 Act of 1934. 
120 Act 25 of 1945. 
121 Hall 2010:75. 
122 Schoombee & Davis 1986:208-219. 
123 Long title of Prevention of Illegal Squatting Act 52 of 1951. 
124 Prevention of Illegal Squatting Act 52 of 1951: sec. 1, read with sec. 2 and 3 regularising the demolition 

of any structures or buildings established on the land without the owner's or legitimate occupier's 
authorization. See also Muller 2014:367- relying on the National Party Election Manifesto (1948) to 
argue that the Act was also a further catalyst to ascertain white enclaves in order to fulfil the National 
Party's vow to "take robust and effective efforts to safeguard the safety of... property and the calm 
lifestyles" of white people. 



 

 

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PISA was accompanied by many other discriminatory laws aimed at repressing the 

free movement and (re)settlement of black people in urban areas.125 The most 

noteworthy of these was the Group Areas Act.126 Augmenting the Black (Urban Areas) 

Act,127 the Group Areas Act partitioned and made it illegal for people of other races to 

use, occupy, and or possess land in areas set aside for the white race.128 In contrast 

to the congested and overgrazed land set aside for Africans, land set aside for 

white occupancy was primed for development.129 The Act was centred on a separate 

residential development agenda: the belief that non-whites could not live in the same 

areas as whites.130  

As I mention earlier in the chapter, the displacement of the communal system of land 

ownership by an individual system of ownership set the foundation for the evolution of 

targeted legislative schemes of separate development based on exclusion and 

othering. This foundation, I contend, still serves as the organising principle for land 

holding, and its impact on the continuance of “othering” must be considered, 

particularly on the approach to the interests of those without rights to land in eviction 

cases. Notably, the emphasis is on exclusion, on who to exclude and when to exclude, 

rather than on who to include and when to include in the property system.131  

The classification and distinction between not just “white” and “bantu”, but also “bantu” 

and “coloured” groupings, putting the majority grouping of non-whites with minor to no 

 
125 Muller 2014:367. For the time being, I will turn away from discussing PISA. The following section 2.5.5 

is dedicated to this piece of legislation. 
126 The Group Areas Act 41 of 1950 was amended by the Group Areas Act 36 of 1966. The relevant 

sections of both Acts, the Group Areas Act of 1950 and the Black (Urban Areas) Act of 1923 were 
copied verbatim in the Black (Urban Areas) Consolidation Act 25 of 1945 and in the proclamation of the 
Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant 
Matters Proc. R1036 in GG Extraordinary 2096 of 14 June 1968 which reiterated the policy that the 
presence of black people in urban areas was of a temporary nature. The differences between the 
earlier Act and the latter are too narrow, at least for my purposes of highlighting the background of 
dispossession and the exclusion of Black interests in the participatory space of property relations. For 
example, sec. 13 of the Act of 1966 prohibits the acquisition of immovable property in a controlled area, 
while sec. 20 placed restrictions on the occupation of land in a controlled area. These sections reflect 
secs. 4 and 5 of the Group Areas Act of 1950. 

127 Black (Urban Areas) Act. 
128 Schoombee 1985:77 argues that group-area legislation formed the cornerstone not only of racial 

segregation but also of the all-encompassing government policy of separate development. 
129 See Schoombee 1985:77-79. See also Rugege 2004:285. The Act accordingly prohibited persons from 

other race groups from using, occupying, or acquiring ownership of land in areas designated for a 
particular group. Black designated areas were excluded from the ambit of the Group Areas Act. In ‘black 
residential areas’ it was a free for all.   

130 Van der Walt 1990:1-46.  
131 See Van der Walt 2001. 



 

 

31 

 

rights against each other so as not to be further marginalised, demonstrates the 

consolidation of this notion of “othering” inherent in the organising principle of land 

holding and the legislation discussed thus far. 

Additionally, while the laws discussed up to this point may have made exceptions for 

Black persons to reside in non-reserve areas, these clauses should be viewed not only 

as a convenient means of assisting those who legally owned property in preferential 

areas but also for the consolidation of “othering”. Using the Group Areas Act, as an 

example: it was not illegal for a person to occupy land or premises if that person was 

a bona fide state servant or employee; or was a bona fide visitor for a total of not more 

than ninety days in any calendar year of any person lawfully residing on the land or 

premises; or was a bona fide scholar attending a state-controlled or aided school.132 

Those to whom the exception applied were made to feel more part of the othering 

system than those that the exception did not apply to. In the end, othering occurred at 

the level of and among the othered in a systematic fashion. The sensitivity to the need 

for and against change, in my opinion, of agents acting in the field of property rights 

all have this limitation to varying degrees.  

The controversial Group Areas Act, dubbed the “heart of apartheid”, resulted in the 

direct displacement of an estimated three to seven million people between 1960 and 

1983.133 Based on the level of control exercised over usage, occupation, and 

ownership, Muller believes that if these displacing legal regimes were depicted as 

points on a continuum, the “reserves” as envisioned in the earlier section would be on 

the left and the “group areas” on the right.134 Moving from left to right on the continuum 

indicated a repressive ascent in the type and/or extent of control.135 When 

investigating a suspected offence under the Group Areas Act, the Police had broad 

 
132 Group Areas Act 36 1966: sec. 17(2). In my view, this created the framework for future co-opting, which 

can be reflected in the foreword  given in Fischer and Another v Ramahlele and Others 2014 4 SA 614 
(SCA); Copper Moon Trading 203 (Pty) Ltd v Persons whose identities are to the Applicant unknown 
and who are unlawfully occupy remainder Erf 149, Philippi, Cape Town and Others 2018 2 SA 228 
(WCC) reflecting  a view of inclusion as including but a few who later form the  bulwark against the 
concerns of the majority of the excluded whom are from the previously marginalised subgroup. This 
sees people who had been discriminated against striving to keep the market value of property rather 
than grabbing the opportunity to define the system. 

133 Rugege 2004:285 estimates 7,5 million; Platzky & Walker 1985 quotes the Department of Land Affairs 
White Paper 1997 which puts the figure at 3,5 million.  

134 Muller 2013:367. 
135 Muller 2013:367. 



 

 

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powers, including sec. 43(1)(a), which allowed them to enter any property without a 

warrant and conduct any examination they deem necessary.136 

A rise in economic growth, combined with a move away from capital to labour intensive 

businesses, increased demand for skilled and unskilled labour resulted in an inflow of 

Black people into white cities and suburbs in search of livelihood.137 The Black (Urban 

Areas) Consolidation Act became increasingly obsolete as a result of the influx. This 

necessitated the drafting of the Black Communities Development Act.138 The Act 

declared, “to provide for the purposeful establishment of Black communities outside of 

protected zones.”139 A certificate verifying the registration, the right to occupy the 

leased site, and the proof that certain rights had accrued would be given to the owner 

of this restricted right.140 The Conversion of Certain Rights into Leasehold or 

Ownership Act,141 which outlined the conversion of certain occupation rights into 

leasehold or ownership, came next.142 A wave of laws aimed at repealing apartheid 

land law ensued.143  

What matters for my objectives is to highlight the complexities concerning people who 

would finally be granted urban land rights in comparison to the preponderance of Black 

people who would be systematically excluded from these early efforts. The people 

forcefully evicted from rural/urban land, as well as those who were not forcibly evicted 

but had not acquired and hence had no rural/urban land rights to forfeit, and yet found 

 
136 Act 36 of 1966. 
137 Terreblanche 2002:329-332. 
138 See sec. 16 of the Black Communities Development Act 4 of 1984. See Kingwill et al. 2017.  
139 Black Communities Development Act 4 of 1984: sec. 52(1)(a) & sec. 52(4)(a) and (b) for example, 

allowed the board, the local authority, or the township developer to grant a competent person a 
leasehold for a period of ninety-nine years on particular conditions and with payment or collateral. 

140 See Muller 2013. Sec. 53(5) of the Black Communities Development Act 4 of 1984 afforded the holder 
of the leasehold the right to (a) erect and improve buildings or to alter and demolish buildings or 
structures; (b) occupy the buildings or structures and the site; (c) encumber the leasehold; and (d) 
dispose of the leasehold to another competent person. 

141 Act 81 of 1988. See Muller 2013. 
142 Sec. 1 of the Black Communities Development Act 4 of 1984. 
143 The Abolition of Racially Based Land Measures Act 108 of 1991 - According to the Act's long title, “it 

was passed to repeal or amend certain laws to eliminate certain restrictions on the acquisition and use 
of land rights based on race or membership in a specific population group; to provide for the 
rationalisation or phasing out of certain racially based institutions; and to repeal the majority of 
discriminatory land laws.” The Natives Land Act and related statutes were repealed by sec. 1. The 
Natives Trust and Land Act was repealed by sec. 11. Sec. 12 of the Act made provision for the phase-
out of the South African Development Trust which controlled the majority of "native" land, allow for the 
land to be transferred from the Trust to the State. 



 

 

33 

 

themselves on  land on account of work-related exceptions, stand to be considered.144 

While the majority fell outside of this ambit, particularly those who had not acquired 

and hence had no urban land rights to lose, this majority would later be excluded from 

tenure reform schemes such as restitution in the constitutional era.145 The argument 

here is that in part due to the past's complexities the majority of people continue to 

access land in an informal manner.146 This has kept them on the periphery of not only 

financial power and property ownership but also on the margins of the human condition 

in terms of the habitability of the spaces they occupy.147 

This element is captured in one of the earliest constitutional housing rights cases 

decided in the Constitutional era, and I can do no better than quote, Port Elizabeth 

Municipality v Peoples Dialogue on Land and Shelter,148 

“With the lifting of the racial restrictions as to where people could live and work, many of the 

unemployed in the former homelands migrated to the cities. They went in search of work, taking 

their families with them. The shortage of accommodation in the urban areas forced them to live 

in shack towns or squatter camps on open land. Their plight should be recognised, should be 

treated with awareness, and understanding. Humane action is needed, not a sledgehammer.” 

 

 
144 See Murray & O’Regan 1990:137-161; Van der Merwe 1989b:353-369 In overview, rural land tenure 

provisions hampered black farmers' and non-farmers livelihood strategies by depriving them of their 
land and restricting their freedom of movement by allowing them to occupy land only lawfully in certain 
restricted areas while ensuring that these restricted areas would not meet their needs and force them 
into labour tenants in white farms and cities.  

145 For a full discussion on land reform with emphasis on restitution see Walker 2008. 
146 Refer to section 1.3.2.1 above.  
147 See Hornby et al. 2017. Approximately 60% of South Africans occupied land or homes in 2011 without 

their rights being recorded in official systems such as the Deeds Registry.17 million people living in 
communal areas, 2 million on commercial farms, 3.3 million in squatter camps, and 1.9 million in 
backyard shacks, 5 million in RDP houses without title deeds, and 1.5 million in RDP houses with 
inaccurate title deeds. Their claims to property cannot meet the stringent requirements of the cadastre 
and remain ‘off-register’. See Napier 2011 and Dawson & McLaren “Monitoring the right of access to 
adequate housing in South Africa”, https://spii.org.za/monitoring-the-right-of-access-to-adequate-
housing-in-south-africa/ (accessed 11 August 2022):33. Data from Statistics South Africa (StatsSA)’s 
General Household Survey indicate that 79.3% of households in South Africa live in formal dwellings, 
while 13.9% of households live in informal dwellings and 5.9% of households live in traditional dwellings 
approximately 1 in 7 households in South Africa lived in informal dwellings (this figure is higher in 
metropolitan areas, where 1 in every 5 households lived in an informal dwelling). Moreover, the Housing 
Development Agency (HDA) has noted that these figures are likely to under-represent the real growth 
in informal settlements. See also Department of Human Settlements 2009:16 for character definition on 
the ‘informal’ and ‘illegality’ of tenure.  

148 Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter and Others 2000 2 SA 1074 (SE): 
para 20.  

https://spii.org.za/monitoring-the-right-of-access-to-adequate-housing-in-south-africa/
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2.2.4 The Prevention of Illegal Squatting Act 

In this section I do not solely seek to situate PISA within the historical legislative 

framework. That is done in the previous section. In light of the assertion that the 

problem of insecure land tenure is in part a result of unreflective and open-textured 

legislation, PISA is explored here as a prelude to the comparative analysis alongside 

its successor PIE. In particular, those clauses and revisions pertaining to this thesis's 

focus: the continued stay of persons, who do not have any rights to land, on land 

belonging to someone else.  

To recap, PISA emerged as a result of the government's frequently failed atte