Land occupations: Legal requirements for human settlements

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Since the promulgation of the first restrictions in response to Covid-19, South Africa has seen a drastic increase in large-scale illegal land occupations.

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Unfortunately, some people and organisations are abusing the limitations the regulations have placed on legal evictions in order to exploit it, and the dire need for housing in South Africa, for political benefit.

Apart from putting landowners and/or landowners adjacent to the property at a serious disadvantage, land occupations very often culminate in the execution of eviction orders. In effect, this means that in cases where legal action is taken and evictions are ordered, the poor frequently become caught in the legal ramifications of illegal occupations.

Proactive prevention is needed

There is yet another dimension to land occupations not directly related to the conflict between the state and private landowners and illegal occupiers. This dimension can have serious long-term consequences if the state fails to urgently put proper measures in place to proactively discourage land occupations, rather than constantly leaving occupations to escalate to such an extent that the only way out is the large-scale eviction of people.

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In terms of the Constitution of South Africa, 1996 (Act 108 of 1996) and in particular section 24 of the Constitution, all residents of South Africa have a right to a healthy environment and the sustainable protection of the country’s resources from pollution and ecological destruction. This means that any development for human benefit must take place in a way that will give effect to this fundamental and constitutional right.

Environmental impact and planning

Where human settlements (environments where large groups of people gather temporarily or indefinitely for residential reasons) are concerned, South Africa has several pieces of legislation that give effect to the aforementioned provision of the Constitution and must ensure that the establishment of human settlements is not only sustainable from an environmental point of view, but that proper access to basic services such as sewerage, water, roads, street lights and refuse removal is also provided.

From a planning point of view, land must be zoned for its intended purpose and in accordance with the regulations (ordinances) of local authorities. For this, national legislation has been promulgated that are contained in the Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) (SPLUMA). The legislation and ordinances enable local authorities to plan for residential expansions and the provision of services.

In addition to the SPLUMA and applicable local ordinances, the National Environmental Management Act, 1998 (Act 107 of 1998) places certain express duties on any person or institution (including the state) that must be complied with before any settlement may be established.

The Act and regulations list several activities, which are related to the establishment of settlements, that are detrimental or harmful to the environment. Because it is harmful or detrimental to the environment and listed in the regulations, a formal application must be made before any of these activities can be executed.

The existence of the aforementioned legislation, which give rise to a constitutional right, should be in line with measures that must be put in place to ensure that human settlements are not in conflict with it. The large-scale occupation of land and/or the fact that it is permitted to happen, by implication, results in the violation of section 24 of the Constitution and the accompanying legislation.

Then it is no longer simply a dispute between landowners and occupiers. Land occupations affect many more people, and the people who occupy land without complying with the aforesaid legislation are thus exposing themselves to that which the legislation in question seeks to prevent.

Constitutional rights and actions

South Africa’s planning and environmental legislation affords rights to a larger group of people (citizens), as well as an interest in the establishment of human settlements and the detrimental effects of land occupations that occur outside the ambit of legislative prescriptions.

Section 38 of the Constitution also opens the door for a larger group of people to approach the court in cases where the state fails to enforce the planning and environmental legislation. In future, more groups of people will turn to the court to insist on their constitutional rights and that legislation ensuring the sustainable creation of human settlements be complied with.

It also means the state, as the enforcer of the legislation, must take urgent action to meet its national housing obligations while preventing land occupations from becoming a political game. This certainly does not serve the interests of any of the parties involved in land occupation disputes. – HJ Moolman, Moolman & Pienaar Incorporated

For more information, contact HJ Moolman on 018 297 8799, 018 297 0397 or hj@mmlaw.co.za.