Effective relief regarding residential property following a failure to execute an eviction order

[摘要] ENGLISH ABSTRACT : The eviction process relating to immovable property utilised for residential purposes can broadly be subdivided into three phases: the procedural; adjudicatory and execution phases, respectively. The procedural stage is characterised by the necessary procedural steps that need to be taken by an owner (or person in charge) or organ of State, in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE) in order to launch an application for eviction of unlawful occupier(s) from private or public land. The adjudicatory phase entails a substantive determination by the courts whether it is appropriate, just and equitable, after considering all the relevant circumstances of the case as required by PIE, to grant an eviction order. The execution phase is only applicable when an eviction order was granted by the court. In line with PIE, just and equitable dates, depending on the facts and circumstances of the matter, are also set for (a) eviction; and (b) the execution of the eviction order. Where the land or property is vacated voluntarily on the date set, the eviction process is complete. However, when the land or property is not vacated as required, the eviction order is executed on the further date, as set out in the eviction order. This execution phase is invariably effected with the assistance of the South African Police Force or other State agents or officials and involves the removal of unlawful occupiers from the land or property in question.However, failure by the State to execute eviction orders has become more prominent and therefore, increasingly, contentious. As a result, the land owner is left without a remedy to protect his or her right to property, whereas the unlawful occupier's position, with regard to access to land and adequate housing, remains in limbo - leaving both parties without an effective remedy.In light of the above, the objective of this study is twofold. Firstly, the research sets out to establish what constitutes effective relief regarding residential property, following a failure to execute an eviction order granted in terms of PIE. In this regard, effective relief, in the context of evictions pertaining to residential property, constitutes appropriate relief for all affected parties that can be executed within a reasonable time. Secondly, the aim is to analyse whether or to what extent a structural interdict; constitutional damages and/or a contempt of court order could be regarded as effective relief, both from the perspective of the land owner and the unlawful occupier(s), given the conflicting rights and interests of the respective parties. The thesis also considers the role and involvement of the State as a facilitator and/or as an owner in the process of eviction in order to determine what would be regarded as effective relief from that perspective. The impact of the respective remedies on the abovementioned parties is analysed in order to determine whether the relief granted can be regarded as 'effective relief relating to residential property, following a failure to execute an eviction order.In this regard various recommendations are suggested, relating to the choice of oversight model and the formulation of the structural interdict. In relation to alternative relief, it is suggested that PIE either be amended or that a framework for direct constitutional damages be developed by the courts. Presently, and in conclusion, it is clear that a combination of remedies may need to be employed in order to provide effective relief where eviction orders are not executed.

[发布机构] Stellenbosch University