Property rights win as SCA rejects Tshwane expropriation bid

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JEREMY MAGGS: A major property rights ruling has put municipalities on notice. The Supreme Court of Appeal (SCA) has blocked the City of Tshwane’s attempt to expropriate privately owned land that had been unlawfully occupied, finding that the city lacked the legal authority to do so and was effectively trying to avoid complying with an existing eviction and relocation order.

Now, on one level, I think this has been seen as a win for property owners and the rule of law, but it also exposes a much bigger crisis – municipalities under pressure, illegal occupation becoming entrenched, court orders going unenforced and the housing burden being pushed into private hands.

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A critical issue, and I want to discuss this in a little more detail with Bulelwa Mabasa from the law firm Werksmans. Bulelwa, a very warm welcome to you. So is this really, in your opinion, a property rights victory or simply a municipality being caught acting unlawfully?

BULELWA MABASA: Jeremy, I think it’s a little bit of both, but I think, to put it crisply, is we’ve seen in our circles, especially in eviction and unlawful occupiers law, where the courts seem to have drifted towards coming to the assistance of unlawful occupiers, and private landowners having to bear the brunt of incurring legal fees to protect their own property.

On the other hand, having municipalities or cities [grasping at] straws in trying to find alternative accommodation.

So in a way, I think it illuminates the dilemma that is faced by many cities across the country with the dire need for land and housing on one hand and on the other hand, the rather unfortunate position that many property owners find themselves [in] when they are faced with unlawful occupiers.

JEREMY MAGGS: What I’m trying to get my head around is how Tshwane got as far as attempting expropriation, if it lacked the authority to do so.

BULELWA MABASA: This case, Jeremy, straddles, I think it’s from 2003, and the City of Tshwane, it was a municipality back then, tried to issue notices to expropriate as early as 2007 and again in later years and so forth, in trying to almost give blessing to this unlawful occupation.

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So when the first owner bought this property in 2003, they, in their wisdom, decided to invite other people to buy off land from that area, which then subsequently became an informal settlement and an informal housing settlement for quite a number of years.

This resulted in about 500 households being left to stay there.

Interestingly, what the city did do, instead of coming to the assistance of the landowner who was seeking an eviction, the city provided the informal settlement with ablution facilities and water tanks, almost making permanent that settlement.

When the landowner successfully obtained the eviction order, the city turned around and said, well, we need this property for housing purposes and we’re therefore going to seek to expropriate.

So I think the city was caught napping in the sense that when it was actually supposed to provide the unlawful occupiers with alternative accommodation, it did not do so.

It tried to circumvent the law and existing eviction orders and tried to then proceed with an expropriation unlawfully.

JEREMY MAGGS: So how important then, is this judgment? Does it make eviction orders more enforceable, or would it simply mean more litigation?

BULELWA MABASA: Eviction orders are enforceable, Jeremy. They always are.

But you’ll be very surprised in reality, we’re dealing with a case in the Supreme Court of Appeal, for example, where an eviction order has already been granted some two or three years ago, and the city has not been able to enforce this order because it argues that it does not have alternative accommodation to provide to the land [occupiers].

So you’re sitting with a ticking time bomb, where eviction orders have been given to innocent property owners, and those eviction orders might not even be enforced because the city sits there and says, look, we don’t have land, we don’t have alternative accommodation that is suitable.

To make matters worse, Jeremy, in this case, the illegal occupiers insisted that the city must expropriate and insisted that they be provided with specific alternative accommodation.

So the importance of this case is that it makes it very clear that occupiers are not entitled to compel the city to exercise its authority to expropriate landowner’s property unlawfully.

It also emphasises the fact that the city breached its own constitutional obligations by ignoring court orders. And, of course, significantly, makes the argument that eviction orders must be complied with without fear or favour.

JEREMY MAGGS: Where does the ruling leave the unlawful occupiers right now then?

BULELWA MABASA: Well, I think for the unlawful occupiers, it’s important to say that land invasions were actually specifically discouraged in this judgment.

As I said earlier on, there has been a body growing of jurisprudence that seemed to almost elevate the plight of homeless people who occupy property unlawfully as against the rights of the property owners.

But I think what this judgment does is it elevates the argument that land invasions are not permitted in our country.

JEREMY MAGGS: Do you think the judgment could risk being criticised as protecting property rights while leaving poor or indigent people with nowhere to go?

BULELWA MABASA: It’s difficult to conclude on making a value laden judgment on the issue, but I think what’s more important here is that there are three actors in evictions.

One is the municipality that bears the legal obligation to provide alternative accommodation, and that bears the legal obligation to ensure that eviction orders are enforced.

Number two, with illegal occupier’s land invasions, the plight of the poor doesn’t necessarily mean that land invasions are encouraged in our country, and those cannot be used to force cities to expropriate land for purposes of housing.

But I think, importantly also for property owners, Section 25 of the Constitution provides that no property owner should be deprived of property for arbitrary reasons.

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I think this does assert the constitutional framing around the balance of rights between the rights of property owners and also the rights of people not to be evicted without a court order.

So I think it strikes that balance.

But for the purposes of these facts, if we think about the case that started in 2003, and you’re only getting a judgment of the SCA now that gives clarity to land rights holders, it’s important for our economy and for our country to know that the rule of law will always remain sacrosanct.

JEREMY MAGGS: Thank you very much indeed. That’s Bulelwa Mabasa from the law firm Werksmans.