Abstract
The unlawful occupation of private land creates a tension between the interests of the unlawful occupiers to avoid homelessness and the landowner to regain control of its property. To balance the interests and rights of the occupiers and the landowners, courts have relied on the municipality, due to its constitutional housing duty, to provide the unlawful occupiers with alternative accommodation. The provision of alternative accommodation prevents homelessness, while at the same time allowing the landowner to regain control of its property.
 In response to demands by unlawful occupiers that they provide alternative accommodation, municipalities have either failed to cooperate or argued that they are unable to accommodate the unlawful occupiers immediately due to resource constraints. This has led to delays in eviction matters to the detriment of landowners. Only in one delayed eviction matter did the Constitutional Court order relief for the landowner. It ordered the municipality to pay constitutional damages to the landowner. After this order, scholars have advocated for similar relief to be granted in other delayed eviction matters. This article aims to add to that debate, by determining under what circumstances an award of constitutional damages in such matters would be appropriate, just and equitable, as is required of a constitutional remedy.
Highlights
The unlawful occupation of land and the eviction of unlawful occupiers are prominent features of post-apartheid South Africa.[1]
Matters in which an eviction order had already been granted and cannot be executed, thereby violating section 34 of the Constitution. It must be decided whether constitutional damages can be awarded as a remedy in delayed eviction matters where the violation of sections 25 and 26 is alleged and not that of section 34.63 It has been argued that the application of the Modderklip judgment is limited to matters where there is an alleged violation of section 34.64 The following section considers whether it could be argued that a delayed eviction matter amounts to a violation of section 25, whereas the subsequent section considers whether it could be argued that constitutional damages in delayed evictions are awarded to give effect to section 26 of the Constitution
While the focus of the article is on the award of constitutional damages as relief in delayed eviction matters, it acknowledges that another suggested form of relief would be the amendment of PIE to make provision for the award of compensation in such matters.[110]
Summary
The unlawful occupation of land and the eviction of unlawful occupiers are prominent features of post-apartheid South Africa.[1]. An overarching argument in this article is that an award of constitutional damages together with the staying of the eviction in delayed eviction matters effectively amounts to the state’s preventing the homelessness of the unlawful occupiers Such a remedy, ensures that the state fulfils its housing duty toward the unlawful occupiers. If an award of constitutional damages is to be found appropriate, the principles of distributive justice must be applied in determining the compensation amount to ensure that the relief is just and equitable To reach these conclusions, this article first explains the law regarding eviction in South Africa and how it relates to delayed eviction matters. The article explains why it can be said that an award of constitutional damages in delayed eviction matters amounts to the provision of housing to the unlawful occupiers by the state and why this fact is relevant to a determination of relief for the landowner. 7. 19 Fose v Minister of Safety and Security 1997 3 SA 786 (CC) (hereafter Fose). Fose para 60. Sections 38 and 172 of the Constitution
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