More than a quarter of a century ago, parliament passed the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. Few laws carry a holier aura.
The act is the statute that promised an end to midnight bulldozers and forced removals. It translated section 26(3) of the constitution (no eviction without a court order) into a legislative tool citizens could invoke.
In a 2005 Port Elizabeth judgment, the Constitutional Court wrote that the act infused “grace and compassion into the formal structures of the law”. Hard to argue with grace and compassion.
Yet, here we are in 2025 knee-deep in unintended consequences. Ask the pensioner who has spent three winters in a Wendy House behind her own home because she can’t afford the legal fees to evict strangers squatting in her lounge.
Ask the farmer in the KwaZulu-Natal Midlands who watches syndicates peg out plots on his crop fields every election season, secure in the knowledge that evictions will dribble through court for years.
Ask cash-strapped municipalities (those that actually try) why they burn millions on constant security for vacant land instead of laying sewer pipes. The act’s halo blinds many to these daily distortions of justice.
I hold, as most people do, that a rule-of-law society must protect the vulnerable. But that same society must also protect property rights, because without clear and enforceable ownership the poor never truly climb out of poverty. They simply trade one uncertainty for another. And a decent legal order can do both.
This is why the act requires urgent amendment and the talk about these amendments that has been going on for years must now progress to actual doing.
‘Land invader’
The first proposed change to the act I would suggest is introducing “land invader” as a term for those who orchestrate or profit from unlawful occupation. It is not aimed at the desperate family that throws up a shack on the fringe of Khayelitsha but rather targets organisers, the men who arrive with a clipboard, a stack of plastic pegs and an empty cash bag ready to receive payment. These middlemen rarely face sanction as the law fixes its gaze on the occupier, not the recruiter. By naming the mischief, we can prosecute the mischief.
The act needs the narrow, conduct-specific offence of inciting or profiting from invasion that respects individual autonomy while reaffirming that freedom is bounded by others’ rights. It also addresses the truth of the matter that in most invasions, the poorest actors are pawns in an enterprise closer to racketeering than protest. We need not treat them as equal wrongdoers, but we must break the business model that feeds on their insecurity.
Critics hear “amend the act” and picture the return of bulldozers. But a draft amendment should propose nothing of the sort. Section 4 should be amended and tightened to let courts consider the intent behind an occupation and the impact on the owner when the occupiers have been there less than six months. Judges would still weigh health, income, the presence of children — everything they weigh now. But they would also weigh malice, a factor strangely absent from the courts’ current calculus.
Section 26 of the constitution guarantees that “everyone has the right to have access to adequate housing” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”. But like many socioeconomic rights, the mere proclamation of the right does not conjure bricks, budgets or the actual building of houses.
The act’s framers assumed that municipalities would steadily extend formal housing and that temporary accommodation would indeed be temporary. Reality disagreed. The Blue Moonlight saga of the mid-noughties showed cities could not shift housing obligations on to private owners, but it also revealed the perverse incentive that once a court orders emergency shelter, the temporary often becomes permanent.
Revision
The act’s section 4 therefore requires revision to recognise finite resources, as section 26 (2) of the constitution does in text. The act should allow a judge, in clear cases of land invasion or bad faith, to grant eviction without obliging the municipality to find alternative accommodation. The safety net remains for bona fide poor households. But where occupiers arrived with malice or under the tutelage of a pay-to-squat syndicate the state is not forced to reward the tactic.
And before the predictable housing-rights chorus starts protesting, no this is not cruelty, it is necessary triage. Social spending must prioritise families who wait in line, not those who push to the front. Nothing breeds social anger faster than watching law-abiding residents sidestepped by queue-jumpers who then enjoy government-funded services. Any constitutional order relies on popular consent and perceived unfairness corrodes that consent.
By pruning the mandatory procedural steps in straightforward cases, an amendment to the act can give effect to property rights that exist in theory but often fail in practice.
The act’s procedural hurdles (notices, multiple hearings, social reports) are only manageable (and barely so) to large landlords and state entities who have deep pockets. The hardest stories regarding the unintended consequences of the act involve citizens. A widow renting out a back room, a black middle-class family fighting to move into their own newly bought flat. For them, a single lawyer’s letter costs a week or two’s grocery money. Amendments are required to give criminal sentences for organisers who charge “fees” to place occupants and expedited evictions should be legislated where occupation is short and plainly opportunistic.
Critics will retort that the constitution already guards owners. True, but rights on paper do not pay attorneys. By pruning the mandatory procedural steps in straightforward cases, an amendment to the act can give effect to property rights that exist in theory but often fail in practice. When property rights collapse, the first casualties are rarely the rich. The rich are able to insure, litigate, lobby and, worst-case scenario, simply find another house. It is the modest owner who loses a life’s savings. The very self-reliant class that SA preaches of creating but in practice doesn’t.
When reforming the act we must keep one eye fixed on history. We dare not revive the 1951 Prevention of Illegal Squatting Act in new clothes. Proposed changes should not criminalise homelessness but they must criminalise coercion and profiteering. They should not authorise midnight evictions but they must clarify when a judge may prioritise an owner’s rights. They should not strip poor families of recourse but they should supplement our courts’ toolbox so it can tailor justice, rather than issue one-size-fits-all orders as limited by the current legislation.
Shielding every unlawful occupier in the name of compassion is a kindness that boomerangs. As Frederic Bastiat warned, “When plunder becomes a way of life … men create for themselves a legal system that authorises it.” If we elevate occupation without consent into a protected status, we don’t lift the downtrodden. We normalise plunder. The winners are often the syndicate boss and the loudest queue-jumper and the losers are the patient families stuck on a waiting list, the first time title-deed owner, and the city forced to divert money from water mains to litigation.
Real compassion means drawing a clear line to help the genuinely homeless, yes, but pull the plug on organised lawlessness before it hollows out the very system that should lift people out of poverty.
Thomas Sowell reminds us that “there are no solutions, only trade-offs”. That’s the quiet wisdom hiding behind this argument. We can either keep a law that dignifies the dispossessed yet steadily corrodes the property rights of everyone else, or we can tune it so that compassion and discipline travel together.
Will the changes end land invasions, cure the housing backlog and restore municipal balance sheets overnight? Of course not. But a law that no longer rewards bad faith is a start. Amend the act and we trade a brittle idealism for a sturdier fairness that fulfils the constitution’s promise of dignity and the protection of property rights for all.
• Eloff, a writer and nonprofit executive, is a legal adviser to the mayor of Cape Town. He writes in his personal capacity.
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