Striking a Balance Between Section 25 and Section 26 of the Constitution

4 May 2023

On Tuesday 25 April, the FW de Klerk Foundation made a concise submission to the Portfolio Committee on Human Settlements regarding the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill 2023 (“the PIE Amendment Bill”), introduced by DA MP Emma Powell.

Secure property rights for all South Africans is a core right that is internationally recognised; that is a requirement for free and prosperous societies; and that is essential for the empowerment and the realisation of the potential of citizens.

No legislation should be considered that would have the effect of arbitrarily depriving anyone, directly or indirectly, of their property – and all questions affecting property should be dealt with strictly in accordance with section 25 of the Constitution and the rule of law.

However, given the prevalence of homelessness in South Africa - with “5654 homeless adults and children” - 1559 of whom live on the street – according to Social Development Minister Lindiwe Zulu as of January 2022 – there is a need to strike a balance between the protection of private property rights and addressing the need for adequate housing, whilst simultaneously ensuring that illegal occupants are prevented from arbitrarily depriving anyone of their property.

The Foundation firmly believes that everyone has the right to adequate housing but that this is a responsibility of the State and should not be achieved at the cost of secure private property rights. Only where dispossession is unavoidable should the expropriation of private property be contemplated, subject to reasonable engagement with the property owner and just and equitable compensation paid in accordance with section 25 of the Constitution.

In this regard, the Foundation supports clause 1 of the PIE Amendment Bill, which seeks to criminalise the incitement of illegal land invasions, regardless of whether or not financial exchanges occurred – as currently required by the principal PIE Act; and clauses 2(b) and 3(a) of the Amendment Bill which will:

delineate a clear period within which dispossession may take place;

require that a landowner is engaged through joinder to the proceedings; and

require that only where the State’s resources are inadequate, should any variation or dispossession of a land owner’s private property rights be contemplated, subject to reasonable and just compensation.

The Foundation believes that the highlighted portions of the Bill will safeguard property rights in South Africa against the threat of illegal occupation, so that the rule of law, as enshrined in the foundational values of the Constitution, is upheld.

Read the Foundation’s full submission here.

Issued by FW de Klerk Foundation, 4 May 2023