Compensating landowners? The state's (Limited) duty toward landowners in delayed eviction matters
Abstract
The unlawful occupation of private land creates a tension
between the interests of the unlawful occupiers to avoid
homelessness and the landowner to regain control of its
property. To balance the interests and rights of the occupiers
and the landowners, courts have relied on the municipality, due
to its constitutional housing duty, to provide the unlawful
occupiers with alternative accommodation. The provision of
alternative accommodation prevents homelessness, while at the
same time allowing the landowner to regain control of its
property.
In response to demands by unlawful occupiers that they provide
alternative accommodation, municipalities have either failed to
cooperate or argued that they are unable to accommodate the
unlawful occupiers immediately due to resource constraints.
This has led to delays in eviction matters to the detriment of
landowners. Only in one delayed eviction matter did the
Constitutional Court order relief for the landowner. It ordered the
municipality to pay constitutional damages to the landowner.
After this order, scholars have advocated for similar relief to be
granted in other delayed eviction matters. This article aims to
add to that debate, by determining under what circumstances an
award of constitutional damages in such matters would be
appropriate, just and equitable, as is required of a constitutional
remedy.
Collections
- PER: 2021 Volume 24 [71]