Cecil Baartman and Others v Port Elizabeth Municipality

The Port Elizabeth Municipality sought to evict twelve appellants from privately owned land (erven 113 to 128 inclusive, Lorraine, Port Elizabeth) on which they had erected shacks without the municipality's consent as required. The property was zoned for residential purposes and fell within the municipality's jurisdiction. The appellants consisted of nine heads of households and four single persons, with 23 children in total. Three appellants were disabled, most were unemployed or in temporary employment, with only one in full-time employment. The appellants had resided on the property for varying periods: one for ten years, three for four years, one for two years, and the rest for eight years. They had previously been removed from an informal settlement in Glenroy approximately eight years prior. The appellants denied unlawful occupation, claiming permission from 'an old woman' assumed to be an owner, but seventeen affidavits from registered owners denied granting permission. The appellants were willing to relocate if provided with alternative land but objected to the municipality's suggestion of Walmer Township, citing overcrowding and high crime rates. The High Court (Jennett J) granted the eviction order with eight weeks to vacate.

• Whether it was just and equitable to grant an eviction order under section 6(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
• Whether the factors listed in section 6(3) of the Act constitute a closed list (numerus clausus) or whether courts can consider other relevant circumstances
• Whether the availability of suitable alternative accommodation is a precondition for eviction or merely a factor to be considered
• What constitutes 'suitable' alternative land under section 6(3)(c) - whether this is determined subjectively or objectively
• Whether it is in the public interest to grant an eviction order where the municipality has not assured security of tenure at the alternative location
• The extent of the State's constitutional obligation under section 26 of the Constitution in eviction proceedings brought by an organ of state

The appeal was upheld with costs, including costs consequent upon employment of two counsel. The order of the High Court was set aside and replaced with an order dismissing the application with costs.

The binding legal principles established are: (1) Section 6(3) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 does not create a numerus clausus (closed list) of factors - courts are entitled to have regard to all relevant circumstances when determining whether it is just and equitable to grant an eviction order. (2) Even where the requirements of section 6(1)(a) are met (unlawful occupation without consent), courts must also consider whether it is in the public interest to grant the eviction order under section 6(1)(b), as public interest inevitably impacts upon the justness and equitability of the order. (3) When an organ of state seeks an eviction order, the State's constitutional obligation under section 26 of the Constitution to take reasonable legislative and other measures to achieve progressive realization of the right to adequate housing becomes a relevant consideration in determining whether eviction is just and equitable. (4) While availability of suitable alternative land is not a precondition for granting an eviction order but rather one factor to be considered, it becomes particularly important where occupiers have resided on the property for an extended period and the eviction is sought by an organ of state rather than private landowners. (5) It is not in the public interest to grant an eviction order that merely relocates unlawful occupiers to another location where they would face eviction again due to lack of security of tenure.

The Court made several non-binding observations: (1) The Court commended the municipality's comprehensive 4-peg housing development programme involving development of 3000 erven per financial year. (2) The Court acknowledged the dilemma facing local authorities who have devised comprehensive housing programmes but are faced with people in desperate need of immediate access to housing or land whom they cannot assist immediately. (3) The Court observed that whether alternative land is 'suitable' under section 6(3)(c) is determined objectively rather than based on the subjective views of the person sought to be evicted, though this observation did not ultimately dispose of the case. (4) The Court suggested that if Walmer Township were owned by the municipality and security of tenure could be assured, the appellants' objections based on overcrowding and high crime rates would probably not have been sufficient alone to refuse an eviction order. (5) The Court noted sympathetically that given the appellants' financial circumstances (mostly unemployed, disabled, or in temporary employment), the municipality's suggestion that they rent accommodation was unrealistic. (6) The Court distinguished between requests for preferential access to housing (which might constitute 'queue jumping') and requests merely for land where shacks can be erected with security of tenure.

This case is significant in South African land reform and housing rights jurisprudence for several reasons: (1) It clarifies that section 6(3) of PIE does not create a closed list of factors - courts retain discretion to consider all relevant circumstances in determining whether eviction is just and equitable. (2) It establishes that when an organ of state (rather than a private landowner) seeks eviction, the State's constitutional obligations under section 26 of the Constitution become directly relevant to the analysis. (3) It recognizes that the availability of alternative accommodation, while not a strict precondition for eviction, becomes a critical factor particularly where vulnerable persons have occupied land for extended periods. (4) It establishes that 'suitable' alternative accommodation must include some measure of security of tenure - relocating occupiers to another informal settlement where they face imminent eviction does not satisfy the requirement. (5) It demonstrates judicial recognition of the practical limitations of progressive housing programs and the need to balance systematic housing delivery against immediate needs of vulnerable persons. (6) The case reflects the broader constitutional imperative that eviction remedies must be exercised consistently with constitutional values, particularly the right to housing and human dignity.