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Breaking the Tie: Evictions from private land, homelessness and a new normality

by Stuart Wilson

INTRODUCTION

The ‘normality assumption’ and its endurance

It used to be simple. A landowner was in law entitled to an eviction order if
he could prove his ownership and the fact of occupation of the land by the
occupier.1 Where the owner acknowledged that the occupier was in
occupation in terms of a valid lease agreement or some other legal right, the
owner bore the onus of proving that the right of occupation had been validly
terminated. If the owner did not acknowledge that any such right had ever
existed, it was for the occupier to prove the existence of the right and that it
had not been validly terminated.2 This summary of the conditions for the
success of the rei vindicatio (at least insofar as it applied to immovable property,
such as land and buildings) is perhaps the most well known of common law
syllogisms. It was the legal expression of what AJ van der Walt has referred to
as the ‘normality assumption, that a landowner is entitled to exclusive
possession of his or her property — this is what is considered the ‘normal
state of affairs’ that will most likely be upheld in the absence of good reason
for not doing so.3 At common law, the only good reason for not granting a
landowner exclusive possession of his property was the existence of a
counter-veiling common law right in the property.

However, the normality assumption, which forms the basis of western
liberal ideas of what property relations are and ought to be, is under attack.
The Constitution of the Republic of South Africa, 1996 (‘the Constitution’)
has formed the basis for this attack. It has done so by entrenching two
defensive rights, which have fought a war of attrition ever since. The first is
to be found in s 25(1) of the Constitution, which states that: ‘No one may be
deprived of property except in terms of a law of general application, and no
law may permit arbitrary deprivation of property’. The second comes just a
paragraph later, in s 26(3), which states that: ‘No one may be evicted from
their home, or have their home demolished, without an order of court made
after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.’ These two provisions, and the subordinate legislation
enacted to give effect to the latter, have sparked intense legal and ideological
conflicts over land ownership and use in South Africa. They have done so in
part because they have upset the normality assumption and replaced it with
vast uncertainty. Where once there was certainty about who would win a
legal conflict over the possession of land and under what conditions, there
was introduced, almost overnight, a new framework in which the only
requirement was non-arbitrariness. An owner could not be arbitrarily
deprived of the use and enjoyment of his property, yet an occupier could not
be arbitrarily evicted from it either.