CHAPTER 23 – REFORM OF PROPERTY LAW

1. The situation before 1991

 During the apartheid era, a whole series of laws enforced the separation of racial
groups
 Because of the close relationship between land law and the policy of apartheid, it
was expected that land reform is one of the main dispute points in the land
reform negotiations.

Outline of apartheid land law

a) The land Acts of 1913 and 1936

b) Customary land rights
c) Residential land rights in urban areas
d) Criminalised land use: group areas and squatting
e) Western civil law land rights

A. The land Acts of 1913 and 1936

 Large apartheid in rural areas was established by the Black Land Act 27 of
1913 where pieces of land were identified and reserved for the exclusive use
and occupation by black groups while other parts for whites were reserved.
 It was the beginning of segregation.
 The reserve of land was extended by the addition of the Development Trust
and Land Act 18 of 1936.

B. Customary land rights

 During apartheid the Customary law was known as inferior.
 Tribal indigenous land use is often seen as backward and inefficient form of
land rights.
C. Residential land rights is urban areas
 In urban areas, special residential areas are set aside by the Group Areas Act
for Black, Coloured and Indian Groups.
 Temporary rights on land that could be obtained in urban areas were
prescribed and governed by regulations of the Black Local Authority Act 102
of 1982 and the Black Communities Development Act 4 of 1984 and the
Blacks Consolidation Act 25 of 1945.
 The land rights consisted of site permits and residential permits, lodgers’
permits and occupation certificates and hostel permits.
 All these forms of landholding were temporary and insecure
 squatter communities have developed as a result.
 Usually developed because of poverty, lack of opportunities and overcrowding
in the rural areas, or people trying to unite with family in the urban areas

D. Criminalised land use: group areas and squatting

 One of the biggest problems of apartheid land law was the criminalisation of
certain forms of land use.
 The Prevention of Illegal Squatting Act 52 of 1951 (PISA) has forced private
landowners and public authorities to demolish and remove all buildings and
structures erected without the permission of the landowner or the intention of
planning measures.
 PISA criminalised the action of squatting
 It was a mechanism for enforcing apartheid practices
 A person was deemed a squatter when he no longer had permission to use
the land
 The owner lost ownership if the status of the land was changed to white
territory.
 There was not an evictions order necessary for the eviction.
E. Western civil law land rights
 The recent development of Western Roman Dutch civil law of white property law
in SA contrasts with the provisions of apartheid land rights.
 The case law is still very closely bound with common law.

2. The Constitutional framework

Land reform statutes promulgated in terms of the 1991 White Paper

a) The Abolition of Racial Based Land Measures Act 108 of 1991:

 Abolished most apartheid laws
b) The Upgrading of Land Tenure Rights Act 112 of 1991:
 Provides for upgrading of weak black land rights to full ownership
c) The Less Formal Township Establishment Act 113 of 1991:
 Provides for quicker and cheaper development of new residential areas
and housing

Land reform: 1993 Constitution

a) Section 28: a property clause that protected property and provided for valid
limitations and for expropriations
b) Section 121 – 123: provided for an Act to control restitution of land rights

Land reform provisions: 1996 Constitution

 Section 26 of the Constitution states that everyone has the right to housing.
 sections 25 (4) - (9) gives a command to deal with land reform as well as the
method for managing
 It is dualistic: it protects property rights and also recommends that land reform
should be undertaken.
 The task is therefore to create legislation as well as implement land reform.
 It is based on the theory of subasitics: Once legislation has been issued with
regard to rights in the Constitution, which aims to expand or explain it, an
attempt must first be made to resolve the dispute through that law.
 Thus, if recourse is made to section 26 of the Constitution, PIE or ESTA must first
be recruited.
 PIE and ESTA are such legislation

a) Section 25 (4) provides that land reform is included in the public interest for
purposes of expropriation, and that property is not limited to land
b) Section 25 (5) places a duty on the state, within its available resources, to take
steps to promote equitable access to land
c) Section 25 (6) states that those people whose rights on land as a result of
discriminatory laws and practices are insecure are entitled to security of tenure
as provided by law
d) Section 25 (7) provides the basis for restitution of land rights as contemplated in
the Restitution of Land Rights Act 22 of 1994
e) Section 25 (8) ensures that state action aimed at reforming land, water, etc. in
order to restore inequalities will be justified in terms of section 25, as long as the
measures do not conflict with section 36
f) Section 25 (9) imposes a duty on Parliament to enact the security of tenure
legislation provided for in section 25 (6)
g) section 26 (3) stipulates that no one can be evicted from their homes without a
court order, which may not be considered unless all relevant factors have been
considered.

3. Categories of reform
a) Restitution of land rights
b) Redistribution of land
c) Improving the security of tenure of existing land rights
A. Restitution of land rights
 Restitution is the most restrictive category and are based on specific historical
land claims.
 This process is aimed at restoring rights to specific pieces of land deprived of
specific people during the apartheid era.
 The Restitution of Land Rights Act 22 of 1994 provides for restitution claims and
different forms of restitution orders
 Claims for land restitution had to be submitted before 31 December 1998 and all
claims are supposed to be completed by the end of 2007.
 This date was extended several times, and the claim process was reopened by
the Restitution of land rights amendment act 15 of 2014
 Claim period extended to 30 June 2019

B. Redistribution of land
 It is a wider category that is not based on historical claims, but rather on the
general need for land among poor people in both rural and urban areas
 Include different programs and processes aimed at obtaining land as well as
making it available in a cheap and timely manner for both urban and rural areas
 Where necessary, private land must be purchased or expropriated for reward for
compensating purposes.
 The Housing Act, the Development Facilitation Act, the Land Reform (ha) Act and
the Land Reform Pilot Program are all part of the redistribution process
 The purpose of redistribution is to make land and access to land available to
more people in an equal way, especially in cases of people who have previously
neither land nor access to land

C. Improving the security of tenure of existing land rights

 It contains legislation and other steps to improve the quality of security of
existing land rights, especially where the security of land rights is prevented or
undermined by apartheid policies.
 The Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of
Illegal Eviction from Unlawful Occupation of Land (PIE) Act 19 of 1998 were
aimed at this process.
 The main purpose is to make the existing rights safer on land by protecting the
holder of such rights from unfair eviction
 Section 26 (3) of the Constitution plays an important role in this regard

4. Restitution of land rights

 It is a limited process where specific persons from whom land was taken during
the apartheid years can set up claims to recover their land.
 The Restitution of Land Rights Act 22 of 1994 was issued under section 121-123
of the Interim Constitution to control this process.
 The 1993 Constitution laid down the principles that demarcate the boundaries of
the land restitution process and establish a detailed process of the restitution
process
 Section 121-123 of the 1993 Constitution has been replaced by section 25 (7) of
the 1996 Constitution as constitutional authorization of the restitution process.

a) Persons entitled to restitution

 Section 25 (7) of the Constitution stipulates that a person or community deprived
of the former discriminatory laws or practices of land after 19 June 1913 shall be
entitled to restitution of those land rights or other equitable redress as
determined by Act of parliament
 The process thus consists of claims against the state rather than between groups
and individuals.
 It is also limited process aiming to rectify a specific set of historic injustices
where people have been deprived of land in terms of the Constitution since 1913.
 It is thus the correction of historical inequalities-limited process
b) Procedure
 Chapter 2 of the Restitution of Land Rights Act provides for the establishment of
a land restitution commission and to administer claims for restitution
 The commission was appointed in 1995
 The commission screens all the land claims and identify those who qualify in
terms of the Constitution and the Act and seek to resolve the claims through
administrative or mediation procedures
 The claims should only be referred to the land claims court if it cannot be
resolved by the commission
 The closing date for claims for land reparation was on 31 December 1998 and no
further claims can be submitted, but it was extended to 30 June 2019
 The timing is intended to promote legal certainty
 The commission and land court must consider and complete the claims submitted
on time in the following number of years

c) Remedies
 Remedies provided in terms of Restitution of Land Rights Act
o Restitution of land which the claimant was dispossessed
o Provision of alternative land
o Compensation

 The restitution of state land is possible if the state certifies that restitution is
feasible
 Private land may also be bought or expropriated for the purpose if the state
certifies that the restoration is enforceable and that it is just and equitable to do
so, and
 The factors taken into account are:
o the history of their acquisition
o The purpose for which it is used
o The hardship caused
o The interests of the parties involved
 Section 33 specifically provides for matters to be considered by the court in the
decision for claims for restitution:
 The desirability of making provision for restitution or compensation to people
deprived of race-based laws or practices of land
 The desirability of correction of previous violations of human rights
 The essence of avoiding large-scale social disruption
 Any provision that already exists for the purpose of promoting equality in a way
 Any other factor that the court considers relevant and compatible meets the spirit
and object of the Constitution
 In re Erven case: page 368

5. Redistribution of land
 The aim is to achieve a more equitable distribution of available land
 This aspect of land reform is authorized by section 25 (5) of the Constitution that
states that the state must take reasonable measures, within available resources,
to promote conditions that enable citizens to obtain land on a fair basis

Acts and laws and state programmes have been introduced for this purpose

a) The Land Reform Act 3 of 1996

 This law controls the position of labour tenants, which are distinguished from
farm workers, because they enjoy exchange of labour, residential and gazing
rights on agricultural land.
 The law stabilizes the relationship by prohibiting unfair evictions of labour
tenants by emphasizing the duty of labour tenant to provide labour for land
rights.
 The law relates to reform of land rights as a redistribution of land but has a
redistribution function.
 After 4 years after the entry into force of the law, labour tenants have the
opportunity to apply for property rights on the land
b) The Housing Act 107 of 1997
  Promulgated in 1997 to promote and co-ordinate the building and provision of
housing
 This Act lays down general principles, most of the practical implementations
will be done and controlled by provincial legislation
 Overarching principles aimed at
o Providing safe, humane and affordable housing for as many people as
possible
o Without placing financial burden on state

c) The rental Housing Act 50 of 1999

 Promulgated to protects the rights of residential tenants
 Contains prescription regarding landlord tenant contracts
 As well as reciprocal rights and duties of landlords and tenants and eviction
d) Positive rights to land and housing Read
page
 Important question regarding redistribution of land and rights to access to
369-
land and housing is whether the constitution provides for a positive right to 370

claim land or housing from the state

 Generally, it is accepted that the constitution does not provide for such rights
 Merely a negative right that prevents the state from interfering with existing
access to land and housing
 And a positive duty to do everything in the states power to provide everyone
with equal access to land and housing
e) The Land Reform: Provisions of Land and Assistance Act 126 of 1993
 Intended to provide financing and powers to give effect to the land reform
objectives in section 25
 Allowing subdivision, acquisition, transfer and settlement of designation of
land
f) The Spatial Planning and Land Use Management Act 16 of 2013
 Instead of previous distinction between urban and rural land SPLUMA
distinguishes between land use management on the national, regional and
municipal and provincial levels
6. Tenure reform
 The purpose of tenure reform is to increase the value and security of existing
land tenure rights.
 Most of the laws in this category promote this purpose by laying down strict
rules, requirements and procedures that must be met to end the occupier's or
user's rights and to evicted the user or occupier
 This aspect of land reform is authorized by section 25 (6) of the Constitution that
states that a person or community whose tenure of land is insecure as a result of
racial discriminatory laws or practices of the past is a right is entitled to secure
tenure or other redress as provided for in a law of parliament
 Section 26(3) also provides protection against eviction

A) The Extension of Security of Tenure Act 62 of 1997 (ESTA)

 This act is an important link in providing security of tenure occupiers, residents
and users of land not protected by previous laws.
 The Act applies to all persons (excluding labour tenants) who occupy land
outside urban areas (rural areas) with the permission of the owner.
o In Venter NO v Claasen 2001, the court held that the Act does not apply
to spouses of occupiers separately, spouses acquire his rights of
occupation from a marriage relationship with another occupier,
 not as an independent right against owner
o in Van Zyl NO v Maarman 2001: court held that the Act does not apply
where the occupier resides on land pursuant to an employment contract
 but it applies when a right of occupation derives from a lease
agreement or other right in law
 Protection of occupiers’ rights is divided into two stages in terms of the law:
o 1. Permission not to occupy land may only be withdrawn or terminated if
the procedures are followed laid down in the Act.
o 2. After the permission has been withdrawn, the occupier can only be
evicted in accordance with the procedures provided in the Act
 The Act distinguishes between persons who already occupied land with
permission on 4 February 1997 and the persons who occupied the land thereafter
with permission
o In former category it would be more difficult to evict occupiers
 These provisions were strictly applied in:
o Karabo v Kok 1998 and Joubert v Van Rensburg, the court ruled that the
law's strict control over eviction would amount to arbitrary deprivation of
property expropriation by placing unreasonable restrictions on landowners'
rights
 In 2001 the Act was amended and granted lawful occupiers of rural land the right
under certain circumstances, to bury family members on the land without the
owner’s permission
o In Nhlabati v Fick 2003:
o It was argued that the amendment was unconstitutional for practically
allowing private expropriation without compensation, but court stated that
the Act protected the landowner’s rights adequately and was valid
 In Dlamini v Joosten 2005:
o SPA confirmed that the established practice to allow burials related to the
land and not to a specific family or group and that the landowner cannot
unilaterally revoke permission to bury once such a practice had been
established
 Occupation can be terminated by the owner but he must obey ESTA's provisions
and procedures in order to implement it successfully.
B) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998 (PIE 19 of 1998)

 The difference between PIE and ESTA

o PIE applies to town areas (urban areas) and persons occupying land
without permission
o This law applies to people who illegally occupy land (without permission)
o Because the occupants of the land usually occupy for a long time and the
reason for occupation is of a technical nature, the Act provides strict
procedures and measures for eviction of these occupiers
o This Act also contains provisions to prevent further unlawful occupation of
land and revokes the old Prevention of Illegal Squatting Act 52 of 1951
(PISA)

 Section 26 (3) of the Constitution: No one may be put out of a 'house' except by
o a-court order
o b-surrounding circumstances

 To get an eviction order you must prove that

o a- you are the owner
o b - and another person occupies your land illegally

 The Constitution prohibits arbitrary eviction

 Lead to the creation of PIE
 PIE focuses on evictions that are illegal

Purpose of PIE

 Prevention of unlawful eviction of unlawful occupiers

 Set procedures for the eviction of unlawful occupiers
this Act also imposes strict anti- eviction provisions, but does this provisions affect
the common-law provisions?

 In City of Cape Town v Rudolph:

o It was decided that common law remedies like the spoliation remedy could
not find application with the Act.
o If the Act applies, the remedies are disqualified and the landowner cannot
choose to rather make use of common law remedies
o It would frustrate the purpose of the Act
 In ABSA Bank v Amod 1999
o The court interpreted the Act restrictively by stating that it does not apply
in situations where the occupation was originally lawful and then became
unlawful, with the result that the common law situation remains
unaffected unless the land was invaded unlawfully
 BUT in Bekker v Jika 2002:
o the court stated that the Act applies to all unlawful occupation of land,
regardless of whether the occupation was originally lawful or not
 In Ndlovu v Ngcobo; Bekker v Jika 2003:
o SCA stated that Act does apply when originally lawful occupation becomes
unlawful
 BUT in Brisley v Drotsky 2002:
o It was said that section 26(3) of the Const does apply horizontally
o But the constitutional provisions do not grant courts the discretion or
prescribe the circumstances in which they can divert from the common
law provision

The 1998 Act states that the courts may grant an eviction order only if it is just and
equitable to do so, with reference to circumstances like the age or health of the
occupiers and the availability of alternative accommodation
Therefore, section 26(3) of Const does not amend common law directly, but the
1998 Act does

But if the State is the owner, courts will rarely advise or approve eviction orders

Port Elizabeth Municipality v Various Occupiers 2005

Facts:

 The local authority has attempted to evict approximately 68 unlawful occupants

from unused private land in respect of section 6 of the PIE Act.
 The group included more than 20 children and certain members of the group
have been on the land for between 2 and 8 years.
 They did not apply for housing under the City Council's formal housing program,
but were prepared to vacate the land, they illegally occupied, if alternative
accommodation was given to them
 The municipality wanted to confirm a eviction order against the unlawful
occupants and confirmed that they would not be constitutionally obliged to
provide alternative accommodation or land for unlawful occupiers.

Judgement

 The Constitution obliges the state and the courts to respect and protect property
interests and to respect the interests, rights and human dignity of those who do
not possess property or homes for historical and social reasons.
 Exceptions should be understood and approximated in light of the balance
between the historical background of unequal distribution of property and the
reasons for the land reform process.
 section 6 of the PIE Act gives discretion to the courts to allow evictions as it is
reasonable and fair, taking into account all the relevant circumstances.
 There is no constitutional duty on local authorities to provide alternative
accommodation to unlawful occupiers, but at the same time the courts must not
allow eviction orders where no alternative accommodation is available.
 The Court confirmed that the Constitution obliges the courts to find a reasonable
and just balance between the rights of the landowner and the interest of
unlawful occupiers
 Unlawful occupiers do not have any occupation rights according to common law
o But their vulnerable position and human dignity must be taken into
account
 Therefore, an order of eviction should not be given to easily, without taking into
consideration all the circumstances
 Court also stated that eviction is not impossible
o Even if it will leave the unlawful occupiers homeless, the landowner’s
rights must be protected as well
 If it appears just and equitable, an eviction order must be granted

 In Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg 2008
o The CC stated that a municipality that evict people from their homes
without meaningfully engaging with them acts against the spirit, purport
and object of their own constitutional obligations, even if it followed all
legislative procedures and requirements.
Meaningful engagements definition: interacting with those involved to establish
possible outcome of eviction, any responsibility the local authority might have
towards the occupiers and ways to avoid or postpone the eviction etc.

 In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2009

o Court stated that evections may be allowed as well as the removal of
communities from state ground embarked for development of formal
housing,
o But ontthe conditions that municipality must
 Engage with the community to establish how removal will be
executed with the least possible discomfort
  That at least 70% of the ne houses built must be given to the
members that was evicted to make the development possible

Section 3

(1) No person may receive direct or indirect money or compensation for the sale
or lease of land without the owner's consent.
(2) This would amount to a violation of PIE as well as fraud.

Section 4: eviction procedure

Where the owner requests an eviction order, the procedure is followed in section 4

A. 14 days’ written notice must be given in an understandable language

B. If the occupier does not go within 14 days, fix court date for application for
eviction order
C. If residential premises are illegally inhabited for longer than 6 months,
alternative housing must be provided (MODERKLIP CASE)

OPERATIONS BY GOVERNMENTAL ORGANS

 may act in public interest (health safety of public and other occupants)
 When the state evicts someone, alternative housing must always be considered
and all reasonable steps must be taken to provide it (MODERKLIP CASE)
 must notify 14 days before court date

Modderklip case

Facts:

Judgement:
Effect of reform

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