Compensating landowners? The state's (limited) duty toward landowners in delayed eviction matters

Abstract

The unlawful occupation of private land creates a tension between the interests of the unlawful occupiers to avoid homelessness and the landowner to regain control of its property. To balance the interests and rights of the occupiers and the landowners, courts have relied on the municipality, due to its constitutional housing duty, to provide the unlawful occupiers with alternative accommodation. The provision of alternative accommodation prevents homelessness, while at the same time allowing the landowner to regain control of its property.

In response to demands by unlawful occupiers that they provide alternative accommodation, municipalities have either failed to co-operate or argued that they are unable to accommodate the unlawful occupiers immediately due to resource constraints. This has led to delays in eviction matters to the detriment of landowners. Only in one delayed eviction matter did the Constitutional Court order relief for the landowner. It ordered the municipality to pay constitutional damages to the landowner. After this order, scholars have advocated for similar relief to be granted in other delayed eviction matters. This article aims to add to that debate, by determining under what circumstances an award of constitutional damages in such matters would be appropriate, just and equitable, as is required of a constitutional
remedy.