?The national Housing Act should be amended to address mass unlawful land occupation in South Africa. This is according to Dr Tanveer Jeewa from the Department of Public Law at Stellenbosch 中国体育彩票 (SU), who recently obtained her doctorate in public law at SU.
Because existing legal remedies in mass unlawful occupation cases are failing, Jeewa proposes a framework that provides justice not only for landowners, but also for unlawful occupiers who have been systematically denied access to housing. An amendment to Section 9(3) of the Housing Act forms part of this framework. Jeewa points out that mass unlawful occupation, as opposed to usual instances of unlawful occupation, includes more than one family unit and has been known to include 100 000 people in settlements.
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?“Existing remedies—court orders requiring the state to resolve unlawful occupation, constitutional damages, and contempt of court orders—are failing. Where they do work, it is only because they allow occupiers to remain on the land while compensating landowners.
“Mass unlawful occupation is not just a legal issue but also a socio-economic and political challenge— one that demands a strategic approach beyond conventional legal remedies," Jeewa explains.?
“Facilitating meaningful engagement between all stakeholders—private landowners, unlawful occupiers, and the state—to develop a sustainable solution also remains a challenge."
Compensation
According to Jeewa, her proposed remedial framework acknowledges historical injustices by providing practical relief to all parties, being forward-looking and long-term, and ensuring compensation for landowners and security of tenure for occupiers.
“The proposed framework compels the state to intervene while protecting landowners' rights by allowing them to decide whether to seek compensation."
Jeewa says statutory expropriation offers a viable solution to the problem of mass unlawful occupation, “because it removes the need for endless litigation while addressing the core concerns of both landowners and occupiers by compensating landowners, securing tenure for occupiers, and shifting responsibility onto the state, which has long neglected the housing crisis".
She mentions the case between the Meadow Glen Homeowners Association and the Tshwane Metropolitan Municipality where the Supreme Court of Appeal explicitly stated that mass unlawful occupation requires government intervention, not just judicial enforcement.
Jeewa says that her proposed amendment to Section 9(3) of the Housing Act would introduce a compensation clause that ensures statutory expropriation only takes effect if the state is unwilling to negotiate a sale contract with the property owner—thus preserving the option of a buy-out as the primary remedy.
“It will also grant landowners discretion over whether to claim compensation. The property will only be considered expropriated if the landowner actively claims compensation, placing the trigger in the hands of private landowners and ensuring a balance of interests.
“The proposed amendment reframes mass unlawful occupation from a law enforcement issue to a land reform matter requiring state intervention. It gives significant power to the executive by treating mass unlawful occupation as a matter of expropriation by the state rather than a legal process of eviction. The state would be obligated to compensate a landowner who can prove that mass unlawful occupation has taken place, thereby leading to an automatic transfer of ownership to the state."
Limited
Jeewa adds that unlawful occupiers would likely receive security of tenure as eviction threats are usually removed once the state owns the land and acknowledges the housing crisis.
“It is, however, important to point out that the state tends to prioritise long-standing informal settlements over newer ones, meaning new occupations may wait longer for land interests to be officially recognised and for services to be delivered.
“Improving informal settlements by upgrading them, rather than by evicting occupiers, aligns with the constitutional imperative to provide adequate housing and prevent forced removals that could lead to further socio-economic displacement."
Jeewa points out that the new Expropriation Act prohibits statutory expropriation and arguably limits such avenues for the state to expropriate land in the public interest. Amending the Housing Act to facilitate such expropriation might also raise procedural concerns for landowners, she says.
“Once compensation is granted through statutory expropriation and the Constitution, landowners' procedural rights would be limited to contesting the adequacy of compensation rather than the expropriation itself. This shift would reduce avenues for legal resistance and place greater emphasis on judicial interpretation of key terms—particularly the definition of 'mass unlawful occupation'.
“Courts could adopt a strict property-rights-based approach, setting a high threshold for when an occupation is deemed 'mass' and requiring greater procedural safeguards for landowners. Alternatively, a more transformative reading could expand the definition, enabling landowners to claim compensation while placing greater emphasis on securing tenure for occupiers."
Jeewa says while her study offers a potential way forward to address mass unlawful occupation and the long-neglected housing crisis, she realises that any proposal to amend Section 9(3) of the Housing Act would face significant political and legal resistance.
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