Proposals to strengthen tenure security

Constitutional rights regarding tenure were discussed at the recent Colloquium on Law and Poverty at Stellenbosch University (SU).

The three-day colloquium, which was hosted by the Faculty of Law, ended on Tuesday [31 May]. It was part of the HOPE Project initiative on Combating Poverty, Homelessness and Socio-Economic Vulnerability under the Constitution.

Mr Gustav Muller and Dr Sue-Mari Maass of the Faculty of Law at the Colloquium on Law and Poverty. (Photo: Anton Jordaan)

Mr Gustav Muller, co-organiser of the colloquium, said it is unconstitutional for municipalities to evict unlawful occupiers without engaging with them meaningfully.

According to Muller, meaningful engagement between municipalities and unlawful occupiers is important to protect the interests of both parties and to understand better the situation of people who are in need of housing.

“Meaningful engagement implies a deliberative democratic partnership between local government and those that stand to be evicted. It protects unlawful occupiers against manipulation and violence,” he said.

Muller is of the opinion that municipalities, community leaders and legal representatives of unlawful occupiers must collaborate and re-evaluate their respective roles to create a successful partnership.

Unlawful occupiers must be protected against “municipal officials who sometimes abuse their power and ignore the concerns and proposals of these people when taking decisions about their future”, he said. 

Muller mentioned that both the local authorities and unlawful occupiers must participate in the conceptualisation and implementation of a plan, policy or piece of legislation which will be important for a court to determine whether it would be just and equitable to grant an eviction order.

“Meaningful engagement is a welcome addition to the South African law because it opens up space for prolonged, intense and honest contestation,” he said.

Prof Juanita Pienaar of the Faculty of Law speaking at the colloquium. (Photo: Anton Jordaan)

Earlier Prof Juanita Pienaar, also from SU’s Faculty of Law, criticised the lack of synergy between government’s draft Policy on Tenure Security and draft Bill on Tenure Security for people living and working on farms.

“Certain clauses in the Bill about eviction notices are poorly formulated and confusing, with vague reference to such aspects as resettlement, restoration of rights and the payment of damages,” she argued.

Dr Sue-Mari Maass, a colleague of Muller and Pienaar, said government must do more to provide tenure security and affordable rental housing for the urban poor.

“The current landlord-tenant-laws are unconstitutional because they do not grant these people legal tenure security. Weak tenure security exacerbates poverty and leads to social exclusion and limited access to urban services.”