The ongoing battle for secure tenure for non-owners in light of Grobler v Phillips

Abstract

The SCA and CC judgments in Grobler v Phillips highlight the complexity of land relations, the continued vulnerability of non-owners and the extent to which laws, which are often very progressive, are sometimes limited in their potential to give substantive rights. This is a problem that manifested because of the SCA judgment in Grobler v Phillips. Where it is held that an eviction is not just and equitable, it could prove to be highly problematic, especially in terms of what an owner is obliged to accept, and regarding the tenure security of the unlawful occupier who is not evicted. The uncertainty in the context of what happens when an eviction order cannot be granted requires urgent attention, whether you are dealing with single owners and unlawful occupiers or unlawful occupation on a large scale, the need for longer-term, more sustainable, solutions is imperative. The question of where the authority for such a solution lies, and how such rights should be constructed or developed in future, should be prioritised in the coming years. The Grobler debacle has also revealed the further questions around what can be expected of landowners in the new constitutional dispensation. More specifically, it has sparked renewed questions about the duty on private individuals in providing alternative accommodation to evicted occupiers. Although the court was vehement in its denial of any obligation on landowners to provide alternative accommodation, this article has challenged this denial especially in so far as such a conclusion does not necessarily line up with prior judgments in this regard.