A Systemically Correct Approach in State Evictions

Abstract

Evictions at the hand of the state have been litigated and adjudicated with reference to section 26(3) of the Constitution of the Republic of South Africa (“Constitution”) and section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”); administrative law principles have not featured to determine the substantive fairness of such decisions. It is argued that the courts’ methodological approach in these cases has been systemically incoherent. The application of administrative law principles can arguably complement this area of law if proportionality is incorporated as the requisite standard for reasonableness. A proportionality analysis not only requires a delicate balance between the eviction of unlawful occupiers and the objective of the state’s action, but also a clear understanding of the impact of such an order. From a methodological perspective, it is argued on the basis of the first subsidiary principle that a) administrative law should find application in evictions at the hand of the state; b) the courts are required to first interpret legislation that has been enacted to give effect to constitutional rights to establish whether an eviction order should be granted or not; and c) the proportionality requirement in terms of administrative law should bring the human factor to the forefront of a substantive fairness enquiry in the context of state evictions.

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