The following are some of the important laws and court cases to do with land, tenure and housing.

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 provisions of the Interim Protection of Informal Land Rights Act have been extended by government to 31 December 2024.

In Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (Dlamini and Land Access Movement of South Africa as Amici Curiae) (2018) the Constitutional Court held that a mining company could not evict a community of people from their lands without their consent or without compensating them for their lands. The Court overruled an eviction order issued by a lower court to a mining company giving it permission to evict 13 families from a farm in the North West Province where the company had mining rights. The Court upheld a provision in the Interim Protection of Informal Land Rights Act, a law that protects land rights by saying that no person may be deprived of any informal right to land without their consent.

COMMUNAL LAND RIGHTS ACT (No 11 of 2004) (CLARA) AND COMMUNAL LAND TENURE BILL (2017)

The CLARA offered redress to people ‘whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices’. CLARA made provision for new land tenure forms for people living in old “homelands” and other communal land. However there was opposition to CLARA from various stakeholders who said that CLARA would undermine rural peoples’ security of land tenure by giving traditional councils wide-ranging powers, including control over the occupation, use and administration of communal land.

In May 2010, In the case of Tongoane v National Minister of Agriculture and Land Affairs, the Constitutional Court declared CLARA unconstitutional. The Court found that there had not been enough consultation with communities and provincial legislatures before the Act was passed. The Court also had concerns that CLARA did not take into account ‘living customary law’ practices in many communities and that rural voices were not heard. In an attempt to create a law that could regulate communal land while providing security of tenure for those with historically insecure tenure, the government published the Communal Land Tenure Bill (CLTB) of 2017. The purpose of the CLTB is to provide for the transfer of communal land to communities and to convert insecure tenure into ownership and other forms that guarantee peoples’ or communities’ rights in land. The Bill has not been passed.

UPGRADING OF LAND TENURE RIGHTS ACT (ULTRA) (No 112 of 1991) & UPGRADING OF LAND TENURE RIGHTS AMENDMENT ACT (No 6 of 2021)

The Upgrading of Land Tenure Rights Act (ULTRA) aims to secure and officially recognise land rights held by people living on customary and informal land, and to transfer power over those rights to the land rights holders. The Act, which upgraded land tenure rights to ownership, only recognized men as the head of the family and as legal land owners. This particularly impacted black women who were unable to own property during apartheid. In Rahube v Rahube (2018), the Constitutional Court upheld a lower court’s finding that a key section in the Upgrading of Land Tenure Rights Act violates women’s right to equality and to independently own property and is therefore unconstitutional. It was also held by the Constitutional Court that the Act was not applicable in the former apartheid homelands of Transkei, Bophuthatswana, Venda and Ciskei (formerly known as the TBVC states). For this reason the Upgrading of Land Tenure Rights Amendment Act (No 6 of 2021) was introduced. This Act came into effect on 1 June 2024 and aims to:

• Provide for the conversion of land tenure rights to ownership
• Enable ‘interested’ people to object to this conversion to ownership
• Provide for the institution of inquiries to assist in the determination of land tenure rights
• Recognise conversions that took place in good faith in the past

COMMUNAL PROPERTY ASSOCIATIONS ACT (No 28 of 1996)

The Communal Property Association Act enables communities or groups to become a legal entity called a communal property association to acquire, hold and manage property on a basis agreed to by members of a community 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.

EXTENSION OF SECURITY OF TENURE ACT (No 62 of 1997) (ESTA)

This Act gives people who lived on someone else’s land on or before 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 they can evict a tenant. (See Extension of Security of Tenure Act [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. An amendment has been proposed to PIE and a draft has been published. This still has to be tabled in parliament.

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. The Transformation of Certain Rural Areas Act states the processes to be followed for the creation of entities to hold the land in the commanages in trust for people living in specific rural areas. This process is managed by the Department of Land Reform and Rural Development and the Municipality responsible for the relevant area.

MUNICIPAL GOVERNMENTS AND THEIR ROLE IN LAND, LAND TENURE AND EVICTIONS

An important general principle from court decisions concerns the role of municipal government in situations where an eviction will make poor people homeless and the need to make alternative accommodation available.

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 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 December 2011 the Constitutional Court ruled that the City of Johannesburg was obliged to provide temporary emergency accommodation to the occupiers of a privately-owned building who were being lawfully evicted and who would consequently become homeless. The Court rejected the City’s argument that the National Housing Code did not oblige the City to fund emergency accommodation and ruled the City’s housing policy was inconsistent with the City’s housing obligation. It was not reasonable, the Court said, for the City to provide temporary accommodation to people relocated by it from hazardous buildings and not to people who would be made homeless through a lawful of eviction by a private owner. The Court rejected the City’s claim that it did not have the necessary funds to provide accommodation for the occupiers, and ruled that the City had incorrectly budgeted based on the belief that it was not obliged to provide them with temporary emergency housing. The important precedent set in this case is that when very poor residents are lawfully evicted, through no fault of their own, and such eviction is likely to make them homeless, the government must intervene and at least provide them with temporary emergency accommodation. (See Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [PIE])