Dr Tanveer Jeewa | Lecturer | Constitutional Law | Department of Public Law | Stellenbosch University | mail me |
The National Housing Act should be amended to address mass unlawful land occupation in South Africa. During my doctoral research in public law, I came to realise that the legal tools currently available are not working.
The system is failing both landowners and the thousands of people occupying land unlawfully, not because they want to, but because they have no other choice.
Mass unlawful occupation is different from individual cases. These are not isolated families squatting on vacant land; some settlements have grown to include tens of thousands, sometimes even up to 100,000 people.
Rewriting housing law to address a failing system
The courts offer remedies such as orders directing the state to resolve the situation, constitutional damages or contempt of court findings. But in most cases, these mechanisms fall short.
When they do work, it’s usually because they allow the occupiers to remain, while compensating the landowners in some form. But this problem goes beyond legal remedies. Mass unlawful occupation is a socio-economic and political crisis that demands a broader, more strategic response. And right now, we’re not getting it.
The state, private landowners, and occupiers all struggle to engage meaningfully. But they need to collaborate if we’re ever going to move beyond the endless cycle of court battles, evictions and temporary solutions. That’s why I’ve proposed a remedial framework that recognises past injustices, offers relief to everyone involved, and focuses on long-term sustainability.
We need a forward-looking approach that gives landowners compensation and provides occupiers with secure tenure.
Statutory expropriation – a viable path forward
I believe the state must take responsibility through statutory expropriation. This approach shifts the burden away from the courts and provides meaningful outcomes for all parties. Landowners get compensated. Occupiers can stay and gain legal recognition. The state starts to fulfil its duty to address the housing crisis.
The courts themselves have acknowledged this gap. In the Meadow Glen case, the Supreme Court of Appeal made it clear: mass unlawful occupation is not something the judiciary alone can resolve. It needs state action.
That’s why I have recommended amending Section 9(3) of the Housing Act. My proposed change introduces a compensation clause. If the state cannot reach a voluntary sale agreement with a landowner, then statutory expropriation kicks in, but only if the landowner chooses to claim compensation. This gives them control while still pushing the process forward.
Reframing the issue by rewriting housing law
This amendment reframes mass unlawful occupation. Instead of treating it as a law enforcement problem, we treat it as a matter of land reform.
The state becomes responsible for intervening, through compensation and ownership transfer, when mass occupation is proven. That also means unlawful occupiers are no longer under constant threat of eviction. Once the state owns the land and acknowledges the housing crisis, occupiers are more likely to receive the support and services they need.
Yes, the state tends to focus more on older settlements. So newer occupations might wait longer for formal recognition and upgrades. But even then, upgrading informal settlements instead of demolishing them is the right step. It aligns with the Constitution’s mandate to provide access to housing while avoiding displacement.
Navigating legal and political resistance
I’m aware that the new Expropriation Act restricts statutory expropriation. That complicates the legal landscape.
Still, I believe amending the Housing Act offers a better path forward. Landowners would still be able to challenge the amount of compensation, but not the expropriation itself. This shift would limit courtroom delays and resistance.
At the same time, courts will play a key role in interpreting what qualifies as ‘mass unlawful occupation.’ They could define it narrowly, which would create hurdles. Or they could adopt a transformative lens, one that allows more landowners to access compensation while giving occupiers a real shot at legal security.
A call to action
My study lays out a way to resolve one of the most urgent housing problems in South Africa. But I know that proposing changes to Section 9(3) of the Housing Act and rewriting housing law will provoke debate. There will be political and legal resistance.
Still, if we’re serious about justice, if we want to protect land rights and human dignity, then we need to rethink the law. We need to put the power of change into the hands of the people most affected by it. This is how we create a system that works.
