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Chapter 10 - Land and Housing

LAND

What is the government’s land policy?

The government has said that it is its policy and vision to address:

• the racially-based land dispossession of the past
• the need for a more equitable distribution of land ownership
• the need for a kind of land reform that will reduce poverty and create jobs
• security of tenure for all
• a system of land management that will make land available for development, but not harm the environment

To carry out this policy or vision, the Government has implemented a land reform programme consisting of three elements:

• Land Restitution to address cases where people lost land after 1913 because of forced removals; the cut-off date for applications for land restitution was December 1998. 
• Land Redistribution to give those most in need a chance to get land for housing and productive purposes. It caters for urban and rural areas and includes labour tenants, farm workers and people who want to start farming.
• Land Tenure reform is a process of reviewing all the old land policies and laws in order to improve the tenure security of all South Africans.

Laws that apply to the land reform programme

The following are some of the most important laws relevant to the land reform programme that have been passed by the government.

Interim Protection of informal Land Rights Act (No 31 of 1996) (IPILRA)

This Act aims to protect people with insecure tenure from losing their rights to land while land reform is being introduced. The Communal Land Rights Act of 2004 will add to the IPILRA.

Communal Property Associations Act (No 28 of 1996)

This Act enables communities or groups to acquire, hold and manage property under a written constitution.

Land Reform (Labour Tenants) Act (No 3 of 1996)

This Act protects the rights of labour tenants and enables them to acquire permanent land to live and work on.

See Land Reform (Labour tenants Act).

Extension of Security of Tenure Act (No 62 of 1997) (ESTA)

This Act gives people who lived on someone else's land on or after 4 February 1997 with permission from the owner, a secure legal right to carry on living on and using that land. It specifies clearly what the landlord must do before he or she can evict a tenant.

See ESTA.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No 19 of 1998) (PIE)

This Act sets out how land can be orderly occupied. It explains when unlawful occupiers can be evicted and how to prohibit unlawful eviction. This Act repeals the Prevention of Illegal Squatting Act of 1951.

See PIE.

The Transformation of Certain Rural Areas Act No 94 of 1998

This Act aims to allow for the transfer of 1.7 million hectares of land to the communities consisting of 70 000 people in the former 'coloured reserves' in the Western Cape, Northern Cape, Eastern Cape and Free State.

Court Decisions affecting land and tenure

Between 2007 to 2011 there were a number of important court decisions affecting laws around access to land, land tenure and eviction. While the details and implications of these decisions are too broad to detail here an important general principle concerns the role of municipal government.  Many of the rulings give the sense that in situations where eviction is going to make groups of poor people homeless, the municipality must be brought into the case and report to the court on the availability of alternative accommodation.

In the case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and others in February 2008, the Constitutional Court found that while the municipality may not necessarily be able to find suitable alternative accommodation for evictees of council property it must make a good faith attempt to do so.  The court stated the in such cases that municipalities must at least “meaningfully engage” with the residents being evicted.   Municipalities must, therefore, work closely with such residents, determine what their housing needs are and make every attempt within their available resources to prevent the residents from becoming homeless.

In February 2010, the Constitutional Court also ruled that a municipal housing  policy which provided temporary accommodation only for  those evicted from unsafe buildings owned  by the municipality itself, was unconstitutional.  This was because such a policy excluded tenants evicted from unsafe privately-owned buildings from consideration for emergency accommodation. Municipal housing policy concerning temporary accommodation for tenants evicted from unsafe buildings must also therefore, cover tenants renting privately

In May 2010, the Constitutional Court declared the Communal Land Right Act (11 of 2004) (CLaRA) unconstitutional.  CLaRA made provision for new land tenure forms for people living in old “homelands” and other communal land.  But the court found that there had been inadequate consultation with communities and provincial structures prior to the adoption of the Act.  Concerns were also given that ClaRA did not take into account ‘living customary law’ practices in many communities and that rural voices were not heard.