Port Elizabeth Municipality v Various Occupiers

The Port Elizabeth Municipality sought an eviction order against 68 people (including 23 children) occupying 29 shacks on privately-owned land in Lorraine, responding to a petition signed by 1,600 residents and the landowners. The occupiers had lived there for periods ranging from two to eight years, most having been previously evicted from other land. They erected structures without municipal consent. They indicated willingness to move if given reasonable notice and suitable alternative land, rejecting the Municipality's proposal to relocate to Walmer Township (which they claimed was crime-ridden, overcrowded, and offered no security of tenure). The occupiers had not applied for housing through the municipal housing programme. The High Court granted the eviction order. The Supreme Court of Appeal (SCA) overturned this, holding that the Municipality had not shown the occupiers would have security of tenure at Walmer. The Municipality then appealed to the Constitutional Court.

• Whether it is just and equitable to grant an eviction order under section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
• The interpretation of section 26(3) of the Constitution (right not to be evicted without a court order considering all relevant circumstances)
• The relationship between property rights (section 25) and housing rights (section 26) of the Constitution
• Whether municipalities seeking eviction must provide alternative accommodation or land
• The circumstances under which courts should consider mediation in eviction proceedings
• The obligations of municipalities under section 26 of the Constitution when seeking evictions

The application for leave to appeal was dismissed with costs, including the costs of two counsel. The SCA judgment setting aside the eviction order was upheld.

When a municipality seeks eviction of unlawful occupiers under section 6 of PIE, a court may only grant an eviction order if it is "just and equitable" to do so after considering all relevant circumstances, including: (1) the circumstances under which occupation occurred; (2) the duration of occupation; and (3) the availability of suitable alternative accommodation or land. Before seeking eviction, municipalities must meaningfully engage with occupiers, treating them with dignity and making reasonable efforts to explore solutions. Courts should be reluctant to grant eviction orders where: (a) occupiers have resided on land for a substantial period; (b) the land is not needed for immediate use; (c) the occupiers are genuinely homeless and in need; (d) the municipality has made no significant attempt to understand the occupiers' circumstances or explore alternatives; and (e) no meaningful engagement or mediation has been attempted. The constitutional rights to property (section 25) and housing (section 26) must be balanced, with eviction proceedings interpreted through the values of human dignity, equality and ubuntu.

Sachs J made important observations on mediation in eviction proceedings, suggesting that courts have power to order mediation even where not expressly provided for in PIE, as part of ensuring a "just and equitable" outcome. He emphasized that "compulsory mediation" means compulsory participation in the process, not compulsory settlement. The judgment contains extensive obiter on the history of forced removals and the Prevention of Illegal Squatting Act (PISA), emphasizing how PIE represents a fundamental transformation from apartheid-era law. Sachs J discussed the concept of ubuntu and its role in constitutional interpretation, stating it "is a unifying motif of the Bill of Rights" emphasizing human interdependence, respect and concern. The judgment notes that some legal problems based on contradictory values cannot be "solved" with "correct" answers but can only be managed more or less well - the role of courts is to balance competing interests in as just a manner as possible. The Court observed that while there is no absolute duty to provide alternative accommodation, courts should generally be reluctant to grant eviction against settled occupiers unless satisfied a reasonable alternative is available.

This is a landmark judgment in South African housing and eviction law. It established the principle of "meaningful engagement" - that municipalities must engage with unlawful occupiers before seeking eviction, treating them with dignity and exploring reasonable alternatives. The judgment confirms that property rights are not absolute and must be balanced against housing rights and human dignity. It emphasizes that eviction proceedings are not merely technical property disputes but involve fundamental human rights requiring courts to exercise wide discretion based on justice and equity. The judgment promotes mediation and alternative dispute resolution in eviction matters. It transformed the approach to evictions from the apartheid-era focus on swift removal to a constitutionally-informed process centered on dignity, fairness and engagement. The decision has had profound influence on subsequent eviction cases and municipal policies regarding informal settlements.