Eviction is a powerful legal instrument; a remedy with which a landowner can enforce her superior right to exclusive possession against almost any occupier. The most striking characteristic of the right to evict is the way in which it illustrates the presumptive power of ownership2 by forcing anybody who wants to resist eviction to prove a right that can withstand the owner’s claim to exclusive possession.3 A right that could successfully resist eviction could derive from the landlord’s grant or from legislation,4 but in the common-law tradition eviction will not be prevented or even postponed by considerations emanating from the socio-economic context or the parties’ personal circumstances – the right to evict is said to rely abstractly on the stronger right to possession.5 Purely on the level of common-law property rights, a landowner (or a landlord) can therefore only be prevented from or delayed in evicting an occupier from her property if the occupier can prove a stronger occupation right or if eviction is regulated by legislation.
In the liberal state, governments routinely use legislation to regulate the hierarchical domination of ownership (and the right to exclusive possession) over weaker occupation rights or home interests,6 according to changing social, economic and political circumstances. In the modern regulatory state, legislation has generally replaced or expanded the restrictions that the common law might have imposed on enforcement of the right to exclusive possession. In most instances, statutory regulation of this nature assumes the form of mostly procedural protection against arbitrary and unfair eviction.7 In some countries, statutory restrictions on the right to evict have been imposed or expanded specifically under the influence or inspiration of constitutional or other, similar (domestic, regional or international) human rights instruments.8 In some of these cases, human rights inspired legislation grants courts the discretion to either allow or refuse an eviction order or to postpone its execution, depending upon considerations of justice, usually to be determined with reference to contextual considerations such as the socio-economic situation, the personal circumstances of the occupier and her family and the availability of alternative housing.9 Regulatory restrictions of this kind can amend the law regarding eviction either marginally or quite drastically, particularly by transforming context sensitivity into (direct or indirect) occupation rights.10 For the most part, however, statutory reforms of this nature are intended to restrict the power of eviction.
It should be noted that this kind of restriction on ownership and the right to evict does not necessarily diminish the presumptive power of ownership. Even when contextual factors enter the equation, courts’ professional tendency to enforce the law of eviction ‘normally’, ‘neutrally’ or ‘objectively’ will more often than not still privilege the protection of stronger rights and result in more or less mechanical eviction of unlawful or weak occupiers who are unable to prove legal occupation rights that are strong enough to trump the owner’s right.11 Apart from instances where the legislature has changed the law explicitly,12 so that courts cannot interpret anti-eviction provisions restrictively – in favour of tradition and the landowner’s presumptive right to evict – and except for a small number of exceptional decisions in which the courts were willing to go beyond the clear wording of legislation,13 the law of eviction generally tends to entrench the presumptive power of strong rights to enforce exclusive possession.14 As a rule, really significant reforms only take place when the state introduces regulatory restrictions on eviction quite deliberately and explicitly, often under the influence of human rights principles or standards. It is important to note this conservative (in the non-political sense) tendency of law for the purposes of this essay, because it implies that any justice or human rights inspired advances that have been made in restricting arbitrary or unfair evictions should be guarded against erosion. My focus in this essay is on one potential source of such erosion.
It has become customary to discuss state regulation of eviction law within the human rights context from the point of departure that the state’s role in the reform of eviction law is to promulgate legislation to protect vulnerable and weak property interests – particularly housing or home interests15 – against common-law eviction by strong and possibly exploitative landowners. At least to a certain extent, this perception of the dynamic between the common law, legislation and human rights law in enabling or restricting eviction is certainly accurate.16 In this regard it could probably be said that the law regarding eviction has recently been developed or reformed more or less successfully under the influence of human rights and constitutional law, to a point where arbitrary and grossly unfair evictions are largely prohibited or restrained; where all occupiers of residential property enjoy a certain minimum of procedural protection against eviction; and where tenants and some other lawful occupiers cannot be evicted before the legal basis of their occupation has been terminated lawfully and fairly. In addition, eviction can in certain exceptional cases be prevented permanently or postponed temporarily, regardless of the legality of the occupation and the relative rights of the parties, purely because of justice considerations related to the social and economic context or the personal circumstances of the occupiers.
Moral, social and doctrinal justifications for these reforms of eviction law have been proposed and discussed over the last few decades. However, my goal in this article is not to discuss the development of eviction law under the influence of human rights instruments and standards, important and fascinating as that subject is.17 For the present, I will simply take it as given that substantial progress has been made in this area and that eviction from residential property is now significantly restrained by constitutional and statutory conditions and requirements. Instead, I wish to focus on instances where residential occupiers are evicted specifically by the state18 and where the state justifies the eviction of individuals and communities from residential property with an appeal to supposedly stronger or more urgent state interests, in a way that might in the long run indirectly undermine the progress that has been made in statutory law regarding eviction of tenants and unlawful occupiers or squatters. From this perspective, the state sometimes relies on and makes use of legislation and common law – and even constitutional and human rights law – not to regulate and impose controls upon eviction, but to reach exactly the opposite effect, namely to facilitate eviction in cases where it is in the interests of the state to vacate (specifically residential)19 premises regardless of the socio-economic context, the personal circumstances of the occupiers or the effect that eviction may have on the occupiers. More specifically, I am interested in instances where the state uses its powers (either of expropriation or of land use regulation) to evict (lawful or unlawful) residential occupiers of land in order to clear the land for purposes of economic development or more beneficial use.20 I am particularly interested in the fact that debate about these dispossessions and displacements for the sake of economic development tends to remain focused on the lawful or otherwise proper exercise of the state power that drives them and fails to engage with the housing or home interest issues that have gained currency in eviction law elsewhere. My hypothesis is that, unless these instances of state eviction for economic development are judged according to the same human rights inspired justice standards that have been developed to protect the home interest of occupiers of residential property against arbitrary or unjust evictions, any justice-promoting advances that have been made in eviction law might have been hollow or futile. Stated differently, I argue that the human rights inspired progress made in eviction law generally needs to be expanded to also cover the intersection between housing and expropriation law.
The evictions I refer to mostly take place in the context of expropriation or regulatory state control over land use, such as slum clearance or economic redevelopment, where the proposed sanitation or redevelopment of land apparently justifies expropriation or dispossession and eventual eviction of the current occupiers of the land. Obviously, any form of expropriation that affects residential property, for any legitimate public purpose, will result in the eviction of the former occupiers and therefore it cannot be maintained (nor will I argue) that something like a home interest should always trump exercises of the power of eminent domain – if this were an inflexible rule, expropriation for clearly legitimate state actions such as the development of transport, electricity and water infrastructure or even social housing might well be impossible. In some of the instances I aim to discuss, the expropriation and concomitant eviction are inspired – and apparently justified – by apparently legitimate state purposes such as redevelopment of the area for social housing. Despite the apparent legitimacy of the land clearance for the sake of developing social housing, the evictions that follow from it often meet with resistance because of the personal and social disruption that these dislocations cause. In other cases, the expropriation and eviction are justified with reference to far less convincing state purposes such as vaguely defined slum clearance, upgrading of economically inactive areas and economic redevelopment, without any guarantee that new or more houses would be built or that the homeless or those affected by the displacement would benefit from it. Expropriations of the latter kind also elicit public outcry and litigation, but with some exceptions the focus in the ensuing debate is mostly on the legitimacy or justifiability of the compulsory acquisition and not on the eviction or the effect it has on the former residents. The context and the personal circumstances of the individuals and groups affected often do not even feature in the discussion.
In what follows I will first of all discuss two striking cases where state expropriation of land for economic development resulted in eviction of residential occupiers from their homes, under circumstances where it may well be asked whether the state purpose of (or public interest in) the expropriation indeed outweighed, or should have outweighed, the arguably equally important state purpose of (and public interest in) protecting the sanctity of home and the cohesion of established communities. The discussion of these two cases is contextualised by references to other similar or comparable decisions from various jurisdictions. Subsequently I will discuss three South African cases that were decided against the backdrop of recent advances in the human rights or justice inspired regulation and restriction of evictions that result in people losing their homes and where the purpose of the displacement was specifically to build social housing. Finally, I will pose the question whether the expropriation for development cases might be decided differently in a context where the home interest is protected more stringently or, stated differently, in a context where the progressive interaction between common law, legislation and human rights is conceived differently.
By now, every property lawyer is familiar with the decision of the US Supreme Court in Kelo v City of New London.21 The facts are well known.22 The City of New London, Connecticut, approved an integrated development plan designed to revitalise its ailing economy. In 1996, the federal government had closed the Naval Undersea Warfare Center in the Fort Trumbull area of New London, an institution that had employed over 1,500 people. In 1998, the city’s unemployment rate was nearly double the state average for Connecticut and its population of just under 24,000 residents was at its lowest since 1920.
The city council intended to turn around the downward trend by redeveloping the Fort Trumbull area. An integrated development plan was drawn up and the New London Development Corporation (NLDC), a private non-profit entity established earlier to assist the city in planning economic development, was reactivated. The plan envisaged developments in the Fort Trumbull area that would create more than 1,000 jobs, increase tax and other revenues and revitalise the economically distressed city. The developments would include a park, a waterfront conference hotel at the centre of a ‘small urban village’ with restaurants and shopping, marinas for recreational and commercial uses, approximately 80 new residences organised into an urban neighbourhood, a new US Coast Guard museum, at least 90,000 square feet of research and development office space, as well as office and retail space, parking, and water-dependent commercial uses. The city council hoped that a US$300 million research facility that the pharmaceutical company Pfizer Inc, would build on a site immediately adjacent to Fort Trumbull would draw new business to the area and serve as a catalyst for the area’s rejuvenation.
To implement the development plan the city, through its development agent, purchased from willing sellers most of the private property in the Fort Trumbull area that had been earmarked for the project. The litigation that ended in the Kelo decision was sparked when the owners of the remaining properties in the area refused to sell and the city initiated condemnation (expropriation) procedures against them. Ms Susette Kelo and her fellow petitioners brought action in the state court claiming, inter alia, that the taking of their properties would violate the ‘public use’ restriction in the Fifth Amendment’s Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of some properties. The Connecticut Supreme Court, relying on earlier decisions of the US Supreme Court in cases such as Berman v Parker23 and Hawaii Housing Authority v Midkiff,24 upheld the proposed takings. On further appeal, a slender 5/4 majority of the US Supreme Court25 upheld the Connecticut Supreme Court’s finding that the city’s proposed use of the petitioners’ property for urban renewal qualified as a ‘public use’ within the meaning of the Takings Clause.26
The majority of the US Supreme Court acknowledged that the city was not planning to open all of the expropriated land to use by the general public, but reiterated that the court had long ago rejected the literal requirement that property may only be expropriated if it is actually opened up to or used by the public or the state. Instead, the court has embraced the broader interpretation of public use as ‘public purpose’.27 In terms of this broader interpretation, the city could not take land simply to confer a private benefit on a particular private party, but takings executed pursuant to a carefully considered plan such as the comprehensive development plan in the Kelo case might well satisfy the public use requirement. Considering the thorough deliberation that preceded adoption of the New London development plan and the limited scope of the court’s review in such cases,28 the Supreme Court thought it appropriate to assess the challenges of the individual owners in light of the entire plan and not on an individual basis. This approach inevitably placed the focus on the potential economic value of the development and away from its effect on individual landowners affected by it. The court decided that the development plan unquestionably served a public purpose and that the takings therefore satisfied the public use requirement in the Fifth Amendment.29 The majority declined the invitation to develop a new ‘bright line’ test that would outlaw takings for economic development on the basis of the public use requirement.30
Despite the city’s success in the US Supreme Court, not much has come of the development plan since July 2005. Following determined activism, the City of New London abandoned its plans to charge those who had resisted expropriation for back rent for the five years since the case began.31 A group of New London residents who opposed the development plan formed a local political party, One New London. This group was unsuccessful in gaining control of the New London City Council, but they gained two seats on the city council and continued to oppose implementation of the plan. In June 2006 State Governor M. Jodi Rell intervened in the conflict between residents and the city council; officials thereafter proposed that the homeowners involved in the case should be granted property in the Fort Trumbull neighbourhood so that they might retain their homes.32 The city also agreed to pay substantial additional compensation to the expropriated homeowners.33 With the assistance of the Institute for Justice, the private organisation that litigated the case on Kelo’s behalf, Susette Kelo’s house was saved from demolition and moved wholesale to a new plot, not far from where it originally stood.34 Other properties were demolished. By the end of 2008, after government expenditures of US$80 million, no redevelopment has taken place. The site of the Fort Trumbull redevelopment project (where Kelo’s and her neighbours’ homes originally stood) has been demolished almost completely and continues to be an unused lot. The preferred developer for part of the site, Corcoran Jennison, missed its final deadline to secure financing for building on the site and was terminated as the ‘designated developer’.35 Of the whole development, just one building was renovated for a Coast Guard museum.36
Politically, the Kelo decision has met with opposition as well, even from within federal and state government circles. On 23 June 2006 former president George W. Bush issued an Executive Order on the protection of the property rights of the American people, in which he prohibited abuses of the right of eminent domain for economic development purposes that are not clearly ‘public use’ as meant in the Fifth Amendment. The policy of the US, the Executive Order states, is that the taking of private property is limited to situations where the taking is for a public use ‘and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken’.37 Apart from this order, at least one private bill has been tabled in the US Senate, and several in the House of Representatives, to prevent abuses of the power of eminent domain to take (especially small) private property for development purposes that benefit a private developer rather than the public at large.38 At the state level, there has also been reaction against the decision. Prior to the Kelo decision only eight states39 specifically prohibited the use of eminent domain powers for economic development.40 By July 2007, 42 states had enacted reform legislation in response to the Kelo decision, 21 of which now severely inhibit development takings such as the one allowed by the Kelo decision, while the rest placed at least some limits on the power of municipalities to invoke the power of eminent domain for economic development.41
Academic reaction has been mixed. While some academic commentators from the US defend the decision,42 others describe it as a mistake and call for a ban on takings for development purposes, even if it requires amending the Constitution.43 In the same spirit, UK commentators Gray and Gray argued that the Kelo decision could mean that ‘“real property” may have ceased to be “real” in the authentic, historic sense’44 and that ‘private property would have become simply a mush of social and economic resource to be reallocated at will by the state’.45 In another context, Kevin Gray assessed the import of the Kelo decision in even stronger terms:
The Kelo case brings together many of the features of the enduring American paradox. It concerns the limits of coercive state power in the land of the free. It exposes the unresolved tension between the sanctity of private property and the power of the mighty dollar. It highlights a confrontation between little people and big business, between individual claims of personal privacy and the collective American dream of wealth and prosperity. It marks a point at which the democratic ideal slides arguably into majoritarian tyranny.46
However, the majority of academic commentators from the US reacted to the public outcry by pointing out that the Kelo decision did not create new law, nor did it signal a new departure in US constitutional jurisprudence.47 At most, this decision underlined the deference with which the US Supreme Court has exercised its jurisdiction to apply the ‘public use’ requirement in the Fifth Amendment ever since the earlier, direction-giving decisions in Berman v Parker48 and Hawaii Housing Authority v Midkiff.49 In Berman, the US Supreme Court accepted that a taking of private land for resale to a private developer in terms of a general slum clearance and land development plan was in the public interest because the authorising legislation declared it so:
Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.50
This deferential approach was continued in Hawaii Housing Authority,51 albeit in a context where the purpose of the taking was not redevelopment of the land but rectification of what was seen as an unhealthy distribution of land.52 In Poletown Neighborhood Council v City of Detroit53 the Michigan Supreme Court upheld the City of Detroit’s taking decision that involved levelling a residential neighbourhood in Detroit and relocating 1,362 private households and more than 150 private businesses, so as to accommodate the General Motors Corporation’s wish to build a new assembly plant. Despite objections from private homeowners and businesses, the state Supreme Court held that the taking was for public use under the state constitution, considering the severely depressed economic condition of parts of the city and the prospect of new industrial development and the economic boost that the development would bring about.54
There are indications that some state courts would decide taking for economic development cases differently, though. Twenty years after the Poletown decision, the Michigan Supreme Court overturned its own previous decision in County of Wayne v Hatchcock, arguing that its earlier view of the public use requirement was too wide.55 Subsequent to the Kelo decision, the Ohio Supreme Court cited this reversal of the Michigan Supreme Court in overturning an earlier decision of the Ohio Court of Appeals in City of Norwood v Horney,56 rejecting both the increasingly broad conception of public use that had inspired the US Supreme Court and state courts in holding that ‘general economic development is a public use’ and the ‘artificial judicial deference’ on which this wide notion of public use was based. Accordingly, the court held that economic development by itself does not satisfy the public use requirement in the Ohio Constitution.
Despite the public outcry and political criticism, the strong dissents and the subsequent deviations in state legislation and jurisprudence, the Berman–Kelo line of decisions confirms that the US Supreme Court will not test the public use requirement in takings of land for development at all vigorously, deferring as it does to the policy decision of the federal or state legislature that promulgated the relevant law or the executive authority that took the decision to expropriate. When Stevens J refused to apply the heightened standard of scrutiny favoured by the minority judges in Kelo, he was simply ‘reflecting our [the US Supreme Court’s] longstanding policy of deference to legislative judgments in this field.’57 As Stevens J pointed out:
For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.58
Accordingly, applying this long-standing policy to the facts, the result looks inevitable:
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.59
The English case of Smith & ors v Secretary of State for Trade and Industry60 also involved a compulsory acquisition (expropriation) that resulted in people being evicted from their homes, albeit that the affected occupiers in this case were lessees rather than owners of the land. The situation in Smith was further complicated by the fact that the case involved specific groups of occupiers (Romani Gypsies and Irish Travellers) who, once evicted, would find it particularly difficult to find suitable alternative residential accommodation because of their identity and lifestyle.
In November 2005 the London Development Agency made a compulsory purchase order under s. 20(1) of the Regional Development Agencies Act 1998, authorising the compulsory purchase of 339 hectares of land in London. The compulsory purchase was made for purposes related to economic development and regeneration of the area, mostly involving provision of central facilities for the 2012 Olympic and Paralympics Games.61 The land affected by the compulsory acquisition included sites in Newham and Hackney where the claimants lived with their families.62 There were objections against the compulsory acquisition order and an inspector was appointed to hold a local public inquiry. The main thrust of the objections was ‘to assert that no compulsory purchase order should be made unless and until alternative sites had been provided upon which the occupiers could pitch their caravans.’63 The inspector reported that the area was indeed characterised by decay, neglect and social problems and that it needed redevelopment;64 he also acknowledged that the regeneration promised by the preparations for the Olympic Games would provide the right sort of injection to salvage the area from complete degeneration.65 There was no possibility that the Olympics development could proceed without the agency acquiring control of the sites occupied by the claimants before the due date.66 However, the inspector nevertheless advised that the compulsory acquisition order should not be confirmed until the Secretary of State was satisfied that ‘suitable relocation sites will be available to meet the reasonable needs of the Gypsies and the Travellers who would be displaced.’67 The defendant considered the report but decided to confirm the order and to proceed with the compulsory acquisition before having secured guaranteed relocation to a suitable alternative site, and as a consequence the claimants instituted proceedings to ask for a court order to quash the decision to confirm the order in terms of s. 23 of the Acquisition of Land Act 1981.
The defendant had realised at an early stage that it would be necessary to find alternative sites to house those affected by compulsory acquisition of the two caravan sites. Enquiries had been made and possible sites had been identified, but at the time when the order was confirmed none of these sites had been secured for the relocation of the claimants.68 The claimants challenged the decision to confirm the compulsory acquisition order before alternative relocation sites had been secured, relying on Article 8 of the ECHR to argue that the order unlawfully interfered with their right to respect for family life and home. The defendant did not deny that the order would constitute an interference, but argued that the interference with the claimants’ family life and homes was ‘in accordance with the domestic law and necessary in the interests of the economic wellbeing of the country.’69
At this point the Smith case raised the same issues as the Kelo case, namely whether it is justified to allow state exercises of the power of eminent domain to achieve general or specific economic development goals, on the unspoken or explicit assumption that the development goal is of a higher order of public importance, when it is clear that individuals or communities will be evicted from their homes and that communities will be destroyed as a consequence of the expropriation, without there being any indication that those who are evicted will receive any benefit from the development. Unlike the Kelo case, the claimants in Smith were not home owners and they did not oppose the development or the relocation – their primary objection was security in the sense of certainty about being suitably accommodated elsewhere, which is a serious concern for Romani Gypsies, Irish Travellers and other communities who share their lifestyle. The court acknowledged the special requirements of these communities with reference to the leading decision of the European Court of Human Rights on the point, Chapman v UK,70 where it was recognised that living in caravans was an essential part of the Gypsy lifestyle, that measures which affect the stationing of their caravans have a wider impact than respect for the home and that such measures also affect their ability to maintain their identity as Gypsies and to lead their lives according to that tradition. Accordingly, in the Chapman decision the court found that there is a positive obligation on the contracting ECHR states to facilitate the Gypsy lifestyle in accordance with Art. 8, both in the framing of legislation and in the taking of individual decisions under legislation that protects general public interests such as access to housing or the environment.71
The Smith court also confirmed that the interference with the claimants’ rights in this particular instance was substantial72 but decided that, since all those involved accepted that a convincing case had been made out for the acquisition, the issue of proportionality only affected the timing of confirmation of the compulsory acquisition order, that is, whether it should have been confirmed prior to securing alternative sites for relocation.73 On this view it was unnecessary for the defendant to prove that the measure proposed was the least intrusive measure possible; the court nevertheless decided that the decision to confirm the compulsory acquisition order was indeed proportionate, as required by Article 8. The reason for this finding was that the defendant had established that the measure he proposed, namely to proceed with the compulsory acquisition order before alternative land had been secured, was the least intrusive measure possible that would still achieve the important objective of ensuring that a substantial proportion of the required land for the development (which included the caravan sites) was under the control of the defendant by mid 2007.74 The deciding factor was therefore the overriding importance of the government objective in developing the land and not the effect that the dislocation would have on the affected individuals or communities. This places the Smith decision squarely in the same category as Kelo.
The power of compulsory acquisition is an important tool for the policy of urban regeneration in the UK.75 As in the case of Kelo in the US, the Smith case was decided in the wake of earlier case law on the use of the power of compulsory acquisition for economic development purposes. In Alliance Spring Co Ltd v the First Secretary of State76 the local authority wanted to use its power of compulsory acquisition to drive a comprehensive regeneration project in an area of north London. Objectors argued that the real reason behind the regeneration scheme was to obtain land for a new stadium for Arsenal Football Club, a development that the local authority supported but for which it could not obtain all the required land in the open market. Having considered the objections and the inspector’s report,77 the court acknowledged that owners of businesses to be dispossessed by the compulsory acquisition would clearly suffer an interference with their property rights under Article 1 of the First Protocol to the ECHR, but decided that any interference with those rights was proportionate. The court dismissed the claim that the compulsory acquisition was not for a public purpose but mainly for Arsenal’s benefit, arguing that regeneration developments are often spearheaded by private enterprise.78 In its finding that the decision of the secretary of state to proceed with the compulsory acquisition was lawful, even in the face of Article 8 of the ECHR, the court displayed a level of deference that is reminiscent of the US Supreme Court in Berman or in Kelo: ‘Once [the secretary of state] decided that there was a compelling case that the CPO [compulsory purchase order] should be confirmed, that view was not only not erroneous but was manifestly correct.’79 Similarly, in Ainsdale Investments Ltd v First Secretary of State80 the High Court upheld a compulsory acquisition of property that was, in the eyes of the local authority, not making a proper contribution to the housing stock in the area.
However, English courts will not always simply defer to legislative or executive decision-making powers on compulsory acquisitions. There are indications that courts will scrutinise the power to acquire property compulsorily, based on the principle that compulsory acquisition has to serve a legitimate purpose and must be authorised by legislation.81 In Pascoe v First Secretary of State82 the objection was not against the compulsory acquisition of private land in a much decayed area of eastern Liverpool for redevelopment, but against the acquisition and destruction of parcels of land where the existing houses were not affected by decay or blight and arguably worthy of preservation for presenting a fine Victorian townscape.83 In the end, the compulsory acquisition was quashed because the court judged that the secretary of state was wrong to accept the inspector’s recommendation on the basis that the land concerned was ‘predominantly under-used or ineffectively used’. This decision was inspired by the conclusion that s. 159(2)(c) of the Leasehold Reform, Housing and Urban Development Act 1993, which allows acquisition of ‘land which is under-used or ineffectively used’, requires that the land must be wholly, not ‘predominantly’, under-used or ineffectively used.84
It is not my intention to write extensively on German law in this context, but a brief note on German case law might be useful, as there are decisions that compare quite interestingly with the cases discussed so far. The most significant general principles in German law on the topic are that expropriation is always seen as a last resort, not to be undertaken lightly, and that expropriation must therefore always be justified by the public purpose for which it is undertaken – the fact that compensation is paid cannot in itself justify expropriation.85 If the property is not used for the purpose for which it was expropriated, the affected person can claim the property back.86 For these reasons, both the statutory authority and the public purpose for any given expropriation are always tested quite strictly in German law.87 The German courts accept that expropriation undertaken for a legitimate public purpose might sometimes in fact benefit a private party, for example when it is necessary to expropriate property for the effective provision of a public utility such as electricity, under circumstances where provision of the utility has been outsourced to a private concern that will make profit from it.88 Apart from the public utility cases, the German Federal Constitutional Court has handed down two decisions dealing specifically with expropriation for economic development.89 In one perspective, the outcomes in these cases look disappointing because they appear to have been decided on narrow and rather formalist issues of statutory authority, but on closer scrutiny they prove to be very interesting.
In Dürkheimer Gondelbahn90 the proposed expropriation for economic development would not have resulted in eviction, since the plan was to expropriate not land, but servitudes over private property for a cable car line that would link the inner city of Dürkheimer with the Teufelstein, a popular tourist destination outside the city. The court decided that the expropriations would have been unlawful because of a technical shortcoming in the expropriation powers of the local authority, and not directly with regard to the question whether the expropriation was for the public interest. Closer analysis shows that the issue was not simply a lack of authority to expropriate, but the quite technical finding that the authorising legislation must allow the local authority to promote the relevant public purpose (public transport) and to expropriate property in promoting it; in this case, the real problem was a lack of statutory authority for this overlap of the two powers. The court was therefore required to scrutinise compliance with the public purpose requirement by checking very closely and technically whether the legislature had in fact contemplated and allowed expropriation for the specific purpose it is to be used for; if not, the authority to expropriate would be lacking. This meant that the court could scrutinise the authority to expropriate quite strictly without second-guessing the legislature’s policy decisions concerning the wisdom or desirability of promoting the particular public purpose: once the legislature has clearly authorised the public purpose in question (for example, public transport) and the means to achieve it (expropriation) the judiciary will not interfere, but it will scrutinise very closely whether the necessary legislative authority for the expropriation is indeed present and sufficient.91
The decision in Dürkheimer Gondelbahn is also interesting because Böhmer J examined the public purpose requirement for expropriation in greater detail in a separate concurring judgment. The essence of his concurring opinion was that the public purpose requirement has to be interpreted strictly, with reference to strict scrutiny of the state’s statutory power of expropriation (this was the basis of the majority decision); that the public purpose that is required for a legitimate expropriation is narrower than what may be simply in the public interest; and that what may be in the public interest is again narrower than what may be considered a public benefit. Accordingly, economic development that may well bring about a public benefit or that might even be in the public interest would not necessarily satisfy the public purpose requirement laid down in the constitutional provision. On this approach, the mere fact that an expropriation would benefit the public generally would cut no ice – the question is whether it serves a more specific public purpose, the promotion of which through expropriation is authorised by legislation.
In Boxberg92 the facts were very similar to those of the US Poletown case, in that the two local authorities involved in the German case also intended to use their power of expropriation to acquire land to enable the Daimler-Benz motor company to establish a testing ground. The idea was that the testing ground would help improve the poor economic and unemployment situation in the area. As in the Dürkheimer case, the court again decided that the expropriation was not authorised by the relevant legislation or by the statutory powers of the local authorities in terms of the planning laws they relied on. The decision confirmed that expropriation would not necessarily be invalid just because it is carried out in favour of a private party, especially if the private concern carries out a public duty for the public benefit and in the public interest, but it again emphasised that the expropriation should be necessary for a public purpose and that it should be authorised by legislation for that purpose. In this case the court decided that the expected general economic benefit of establishing the testing ground was insufficient to justify the expropriation in favour of a private company, and consequently the expropriation was invalid for being in conflict with the public purpose requirement in Art. 14.3 of the Basic Law.
Four useful perspectives emerge from this brief overview of German case law. The first is that expropriation is an extraordinary power, not to be used lightly and always to be regarded as the only available solution, the last resort for accomplishing a legitimate public purpose. This principle means that the payment of compensation does not in itself justify expropriation; it must be justified before compensation becomes an issue. Similarly, if the property is not used for the purpose for which it was expropriated, the affected person can claim the property back. The second perspective is that expropriation can serve a legitimate public purpose even when it benefits a private person, provided that it is necessary for a public purpose that is undertaken for the public by that private person, such as providing a public utility. The third point is more directly relevant to the topic under discussion: in deciding whether an expropriation for the sake of economic development satisfies the public purpose requirement, the German courts start out from the legislation that authorises expropriation in general or the promotion of the relevant public purpose (for example, town planning) in particular, requiring that both the expropriation and the purpose served by it should be authorised and justified clearly and more or less directly by the legislation. Concretely, expropriation for the sake of stimulating economic regeneration would be possible only if the authority in question is authorised by legislation to promote economic regeneration and to use expropriation for that purpose. The legislation would also have to set out the framework within which compensation has to be calculated and laid for expropriation in cases of that kind. The fourth perspective is that public purpose, as a consideration that legitimises expropriation of private property, is narrower than public interest and even narrower than public benefit – this indicates that the German courts apply a much stricter level of scrutiny when interpreting this requirement than the US courts do.
There is a clear principle in English law, US law and German law that expropriation for an improper purpose or purely for private benefit is illegitimate, regardless of whether the expropriated owner receives adequate compensation.93 Not one of these systems or South African law will allow expropriations that are manifestly for an improper or purely private purpose. However, having said that, in assessing the impact and validity of cases where eviction from people’s homes was allowed in the wake of expropriation for the sake of economic development, one should be aware of the systemic differences between US, English, German and South African law.
One important difference is the fact that property is protected constitutionally in US, German and South African law, whereas the ‘constitution-like’ protection of property in the UK (via the Human Rights Act 1998 and the ECHR) is at least more tangential. The same holds for the constitutional protection, in so far as it exists, of a right to security of tenure in, or ‘respect for’ one’s home.94 A second significant difference is the role of parliamentary sovereignty (which is strong in England) compared to constitutional supremacy and review (which is strong in the US, Germany and South Africa). Obviously, one could expect a stronger tendency to defer to legislative decisions in a system characterised by parliamentary sovereignty, while one might perhaps expect less deference under a sovereign constitution. At the same time one should be aware of the fact that one of these approaches is not necessarily better than the other; parliamentary sovereignty in the English system is balanced out with a strong tradition of robust parliamentary debate and controls over the granting and exercise of legislative powers, which arguably reduces the need for constitutional review. These differences have a marked effect on the way in which legislation is made and in how it is tested against constitution-like norms and standards and can therefore have an effect on the outcome of the case law discussed here.
Although the deferential attitude adopted in Smith resembles the deference with which the US Supreme Court has applied the public use requirement since Berman, the two systems and the reasons for adopting the respective judicial attitudes in these cases are different in important ways. In English law there are strong constitutional reasons (the principle of parliamentary sovereignty) for leaving the decision whether legislation could or should authorise compulsory acquisition to the legislature, while the principle of constitutional review suggests that the US courts might test legislative decisions of that kind more strictly against constitutional requirements. When the US Supreme Court defers to legislative decisions on taking private property for public use, it is placing a limit or a restraint upon the power of constitutional review, whereas the English courts are acting in accordance with the principle of parliamentary sovereignty when they refrain from getting mixed up in policy decisions. Similarly, the superficial similarities between the German cases and the seemingly strict review in the English Pascoe case should be seen against the backdrop of the differences between the systems: the English court was testing for statutory authority because that would bring the principle of parliamentary sovereignty into play; the German courts are testing for proper authority as a matter of constitutional review, because expropriation interferes with a constitutionally guaranteed right.
A further point that emerges from the overview of case law on expropriation for economic development is that these cases (and their treatment of the public purpose requirement in third party transfers) should be distinguished clearly from two categories that look similar, namely expropriation for the sake of a private party that provides a public utility; and expropriation for the sake of a third party transfer that serves some other public purpose than economic development pure and simple. The first of these categories has been mentioned already – it seems relatively simple to accept that the public purpose requirement should be applied more leniently when the expropriation benefits a private party who needs the expropriation because it is providing a public utility or another kind of public service on behalf of the state. Of course there will be borderline cases in this category that might be difficult to judge, but as a general rule this category does not cause too much trouble with the public purpose requirement and I do not discuss it further here.
The second category distinguished above is expropriation for the benefit of a private party for a public purpose that is neither related to delivery of a public utility or another public service, nor connected with economic development as such. In Hawaii Housing Authority,95 private land was taken for redistribution to other private owners in order to break up a traditional, feudal and economically unhealthy pattern of land holdings and to replace it with a more equitable and open system of land holdings. The distinction between this case and the economic development cases discussed earlier is immediately apparent – both involved taking of private land and giving it to other private persons, but in Hawaii Housing Authority the redistribution served what looks like a more easily justifiable state or public function, namely reform of the system of land holding. In this instance, the private beneficiary of the scheme is almost incidental to the overall redistribution project, the public purpose of which is relatively easily established as state regulatory control over a healthy, vibrant and equitable distribution of land holdings. The case of James v UK 96 also belongs in this category. What distinguishes cases like Hawaii Housing Authority and James from cases like Kelo and Smith is the fact that in the former category expropriation is justified by a public purpose related to the general public interest in (morally or constitutionally) legitimate land reform that should broadly speaking improve access to and security of land holdings, while the latter involves expropriation that serves the broader purpose of allowing or promoting or facilitating economic development or redevelopment that might or might not serve the specific interests of the very group whose home rights are negatively affected. Both could result in people being evicted from their homes, but as the James case shows, eviction is not inevitable in the expropriation for redistribution cases, since the idea might often be exactly the opposite, namely to secure the security of tenure of those who in fact occupy the property.97
The logic of eviction from and protection of the home interest suggests that expropriation for general economic development might be more difficult to justify than expropriation for redistribution (including provision of housing). In the language of human rights, one might think that the home interest should always or mostly trump the power to expropriate and evict people for the sake of economic development, while it may often actually be served by expropriation for redistribution. Expropriation for the sake of slum clearance and regeneration probably features uncomfortably somewhere in between these two categories, depending upon the severity of the prevailing blight conditions and the general tenor and impact of the regeneration and redevelopment plans. If slum clearance and redevelopment involves clearing areas that inadequately house people who would otherwise have been homeless and making the land available for development of upmarket economic use, without providing housing for those who have been evicted, the effect might be towards the Kelo end of the continuum, where the overall impression is one of potential for exploitation and unequal treatment. If the redevelopment is primarily aimed at providing more and better housing, which could also benefit those who had been displaced by it, the effect might be towards the James end, where one tends to feel more comfortable with what looks like a temporary displacement rather than eviction and exploitation, even when private investors and entrepreneurs benefit or make a profit from the redevelopment.
The City of New London’s decision to use its power of eminent domain to implement its urban redevelopment plan not only took Susette Kelo’s house away from her but also brought about a serious disruption in her life and in the life of her erstwhile Fort Trumbull community, economically in decline as it might have been. Even though her house had been rebuilt on another plot, the neighbourhood and the community had been broken up irreversibly. As Lorna Fox has reminded us, homes consist of far more than just plots with building structures on them – even when a displaced person receives alternative accommodation, that does not automatically restore the community and the sense of belonging and security that it affords, especially in less affluent neighbourhoods. In the Kelo case, expropriation for the sake of economic development had dispossessed Ms Susette Kelo of her house, displaced her out of her neighbourhood and destroyed the community that constituted it.
It has been pointed out that people reacted negatively against the Kelo decision for diverging reasons – libertarians and free marketeers primarily criticise what they regard as the unjustified or inefficient state interference with private property, while other negative reactions to the excessive deference with which the courts approach these matters might be inspired by different political or doctrinal considerations.98 For present purposes I am especially interested in those commentators who criticise decisions like Kelo for the destructive effect that it has on the neighbourhood, the home interest of those living in it and the community that is destroyed by it. The destructive effect that evictions have on the home interest of residential occupiers has been pointed out and developed in property and human rights literature on housing rights,99 but in the wake of decisions like Kelo and Smith, similar questions should be and are now asked about the effect of state exercises of the power of eminent domain. In a commentary on Kelo, John Fee100 describes the areas in which the law now attaches a heightened status to people’s homes and investigates the strategies that could be employed to protect the home against the government’s power of eminent domain. Fee dismisses alternative strategies, such as completely prohibiting economic-development expropriation of people’s homes and employing stricter judicial scrutiny to ensure that the state does not abuse its power of eminent domain when homes are at stake, as inadequate. Instead, he opts for a third strategy, namely making the state pay a higher level of compensation (described as a premium) for expropriation of homes, to the extent that the measure of compensation should deter the government from using expropriation in all cases where the expropriation is not inspired by genuine public necessity.101 Fee argued that the law recognises the heightened status of home in some areas, but points out that this awareness has not yet penetrated into the law of eminent domain,102 which suggests that requiring a higher level of compensation for expropriation of a home might restore the current imbalance in government decision making.
In a somewhat similar spirit, Peñalver103 considers the effect of Kelo on the metaphorical notion of one’s home as your castle, but then with emphasis on the inherent dignity of homeownership rather than the tired old idea of ownership as ‘despotic dominion’. In this perspective, Peñalver argues,104 the idea of the home as a castle demands that the state should, when exercising its power of eminent domain, do so with due respect for and recognition of the importance of the property in the lives of the people who are displaced by expropriation. This can be done in two ways, first by refraining from using the power of expropriation at all to acquire residential property compulsorily, except when it is really necessary for an important public purpose and, secondly, by paying adequate compensation when expropriation of residential properties does take place. In cases like this, simple market value does not as a rule indicate adequate compensation. In a sense, Peñalver therefore combines a preliminary strategy of heightened scrutiny with a final fallback, when expropriation of a home cannot be avoided despite strict scrutiny, onto requiring a premium in compensation for destroying a home.
Commentators like Fee and Peñalver, who favour restricting the power of eminent domain when it results in eviction and displacement and therefore dispossesses people not only of property but of a home, are in effect extending the influence of human rights based theory on what has become known as the home interest in eviction law to the sphere of eminent domain law. Through their argument, the theory of home interest that was developed by Lorna Fox105 and others in the general area of eviction acquires useful currency in the wider area of expropriation law. The fact that Article 8 of the ECHR was considered in a case like Smith indicates that the notion of a home interest already finds wider application in English law than merely in the conventional eviction cases not involving expropriation, such as Harrow LBC v Qazi,106 Connors v UK,107 Kay and Another v London Borough of Lambeth and ors; Leeds City Council v Price and ors108 or McCann v UK.109 The fact that the proportionality analysis prescribed by Article 8 of the ECHR is employed in English case law to assess the legitimacy of evictions in general and also of evictions resulting from exercises of the power of compulsory acquisition looks like a positive sign, indicating that the home-protection effect of human rights learning has found a stronger foothold in English law than in other jurisdictions, where the effects of human rights standards may have influenced eviction law in general but not expropriation law. However, it is worrying that cases like Smith could still be decided against the occupiers, despite the proportionality analysis, which suggests that the effect of home-interest reasoning might in fact be weaker in English law than one might have thought possible or desirable.110 Having said that, one would rather see courts applying Article 8 proportionality language to cases where expropriation results in eviction than having them not pay attention to the effect of the expropriation on the home interest at all – in this sense, recent English case law represents a step in the right direction. It would acquire real impact if the level of scrutiny could be heightened on account of the home interest that is at stake.
The potential impact of the idea of home and its potentially restricting effect, not only on eviction in general but particularly in the context of expropriation, is underlined even more clearly by the like-minded but slightly different line of argument developed by Frank Michelman111 and Laura Underkuffler.112 With an appeal to the earlier work of Michelman, Underkuffler argues that ‘the selective disregard for community’ displayed in expropriation actions such as Kelo ‘violates the principle of equally respected participation’.113 In Michelman’s terms, if constitutionally protected property is understood purely in terms of reliance-based and expectation-based interests, decisions such as Poletown or Kelo would look correct and fair as long as the owners received just compensation, but when the political reliance interests of the residents – their rights to political participation – are taken into account, things might look different.114 In addition to the personal financial interests usually emphasised by the courts and the personal, affective and social interests described by Fox, Michelman and Underkuffler focus specifically on socio-political interests. To gauge the effect of economic development takings on the right to equal political participation, it becomes necessary to take cognisance of the ‘social and political significance of property in human lives’,115 and then the physical locality of property appears as the ‘material foundation’116 for social and political expression and self-determination.117 ‘When seen in this light,’ Laura Underkuffler concludes, ‘the destruction of neighbourhoods for economic redevelopment purposes has clear and severe consequences for the residents’ continued, fair, and effective political participation.’118 This consideration, Underkuffler argues, cannot automatically trump every public development project that destroys a thriving community, but the interests of the residents and citizens and its role in the political system ‘must weigh very heavily in the calculation’.119 Another consideration that would also weigh very heavily in the calculation, which Underkuffler describes as the ‘certain knowledge of selective risk’,120 is the almost certainty that the poor and socially and politically weak are more likely to have their homes destroyed for economic redevelopment projects than the rich and powerful; a consideration that strengthens the impression of selective exclusion inherent in these exercises of the power of eminent domain.
The important point emerging from the arguments of Michelman and Underkuffler, supported by Fox, is that even paying a higher premium for the expropriation of a home121 cannot compensate the loss of a home and the displacement that accompanies it adequately. It is hard to place a money value on the affective and personal attachment of an individual to her home and of a family or group to their community, but it is even more difficult or impossible to place such a value on the social and political cohesion and freedoms that are lost when a residential community is destroyed. This is especially true under circumstances where it appears likely that the destruction always targets those who are too weak or marginal to avoid it or to defend themselves and their interests.
Both Underkuffler and Fee point out that this consideration does not imply that the home interest or the existence of a settled community will always trump the state’s desire to acquire property compulsorily – it merely underlines the principle that expropriation should not be used lightly and that it should be used even more sparingly when residential property is at risk. In cases where exercises of the power of eminent domain will or may result in people being evicted from their homes and displaced, the principle should be that the expropriation is only justified when the public purpose it serves is really necessary and in the interests of the public at large.122 Generally speaking, expropriation for purposes of economic development should only be allowed to trump individual and community home interests when the redevelopment is a matter of public necessity and when the affected individuals and community will also benefit from the development, for example by acquiring fair access to new or improved homes in the development. If the development is likely to bring general economic benefit for the community at large but will exclude the residents most closely affected by it, it should not be justified easily. All this indicates that a heightened standard of scrutiny is required when adjudicating eviction cases that result from exercises of the state’s power to expropriate or to regulate the use of land. Stated in this form, the importance of the home interest in eviction brings to mind the South African case law concerning eviction for the sake of freeing land up for the building of more or better social housing.
The question considered in this section is whether there is a way in which the effect of human rights thinking in eviction law could be extended to cases where the eviction was caused by expropriation of land for a supposedly stronger or higher public interest in economic redevelopment of the land, without losing the force that home-interest thinking has apparently acquired in eviction law generally. Three eviction cases decided by the South African Constitutional Court, namely Port Elizabeth Municipality v Various Occupiers,123 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and ors124 and Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae),125 provide a useful starting point for this discussion.126
It is necessary to highlight the differences between the South African cases and the US and UK case law discussed earlier. Although some of the properties involved in the South African cases were owned privately, none of these cases involved expropriation – eviction resulted from state regulatory action in the process of land-use control and provision of housing. Perhaps somewhat surprisingly, the new South African government has used its power of expropriation sparingly, even in promoting land reform, and consequently there are no expropriation for development cases to compare with the US and UK decisions discussed earlier. However, despite these differences, in all the South African cases reviewed here eviction was aimed at clearing the land for redevelopment; in the last two cases development was specifically aimed at providing new and better social housing. The comparative value of these cases is therefore to be found in their promotion of a supposedly higher or more important state purpose, namely land development, at the cost of the home interests of individuals or communities who have to be evicted and displaced to realise the development plan.
In Port Elizabeth Municipality v Various Occupiers127 the occupiers had been living on vacant privately owned land for between two and eight years, in shacks that they had erected without permission. They had not applied for housing under the municipality’s housing development programme, but indicated that they were prepared to move if alternative land were provided for them. The High Court granted an eviction order against them, which was overturned by the Supreme Court of Appeal. In a further appeal, the Constitutional Court confirmed that the courts exercise a judicial discretion in deciding whether it is just and equitable to grant an eviction order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.128 Secondly, the court pointed out that land reform laws can only be interpreted and applied for the sake of transformation when they are explicitly and purposively understood in their historical framework (the role of evictions and forced removals under apartheid) and their constitutional framework (the transformative purpose of the Constitution and the land reform laws).129 Section 26(3) of the Constitution and anti-eviction legislation promulgated in terms of it are intended to rectify eviction abuses of the apartheid past and to prevent their recurrence.130 In the historical and constitutional context of these provisions it is necessary to establish an appropriate constitutional relationship between the protection of property rights (s. 25) and the protection of access to housing (s. 26).131 The Constitution challenges the courts to avoid the traditional hierarchical view of property and housing rights and to reconcile them in as just a manner as possible, taking into account all the interests involved and paying proper attention to the circumstances of each case.132 In some instances, such a contextual analysis could imply that a landowner might not be able to obtain or enforce an eviction order, even though she is able to satisfy the common law and statutory requirements, simply because the court deems eviction unjustified in view of the general socio-economic and the particular personal circumstances of the unlawful occupiers. However, the court also made it clear that the anti-eviction measures do not imply that it becomes impossible for a landowner to evict unwanted and unlawful occupiers of her land – in cases where it is justified, an eviction order will still be granted, even if it means that people would lose their home. The court emphasised that the decision whether to allow eviction is a highly case-specific one that has to be taken anew in every individual case, taking into account all the circumstances.133
In Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and ors134 a local authority attempted to evict unlawful occupiers from inner city premises using its powers to promote public health and safety, as part of a programme designed to reverse inner city decay and eradicate dangerous and unhealthy living conditions.135 The High Court, following the approach of the Constitutional Court in Port Elizabeth Municipality, emphasised that eviction is fundamentally a political matter and that eviction cases therefore have to be decided according to the historical and contextual approach set out by the Constitutional Court. Even when the post-apartheid democratic state legitimately exercises its police power to protect public health and safety it must reconcile that duty with its constitutional duty towards the housing needs of the poor and the destitute.136 Accordingly, the personal circumstances of occupiers have to be considered before an eviction can be granted, both when a landowner applies for eviction to enforce her property rights and when a local authority applies for eviction to protect public health and safety. The mere fact that premises appear to be unsafe or unhealthy does not automatically or mechanically justify eviction by the local authority — the degree of desperation of the people living under those circumstances and the length of time of their occupancy have to be considered as well.137 The Constitution requires that the state should ensure that everyone has access to affordable and acceptable housing; among other things this means not destroying existing access to housing unless it can be justified with reference to constitutional requirements and values.138
This decision was overturned by the Supreme Court of Appeal139 but later confirmed by the Constitutional Court.140 The court issued an interim order, based on s. 26 of the Constitution and the approach adopted in its earlier decisions,141 to ensure that the city and occupiers ‘would engage with each other meaningfully’ on certain issues involved in the eviction.142 This order was explained with reference to the fact that a city (local authority) has constitutional obligations towards the occupants of residential property in its jurisdiction, including the obligation to respect, protect, promote and fulfil the rights in the Bill of Rights, the most important of which are the rights to dignity and life. In view of these obligations, a municipality that evicts people from their homes without first meaningfully engaging with them to search for a solution ‘acts in a manner that is broadly at odds with the spirit and purpose of the constitutional obligations’.143 The duty to engage with people who may be rendered homeless by eviction is also ‘squarely grounded’ in the state’s constitutional obligation (s. 26(2)) to take reasonable measures, within its available resources, to achieve the progressive realisation of the right of access to housing.144 Meaningful engagement between a municipality and people who may be rendered homeless by eviction is a two-way process with an open-ended list of objectives, including determining what the consequences of eviction might be; whether the city could help to alleviate dire consequences of eviction; whether it is possible to render unsafe or unhealthy buildings relatively safe and conducive to health for an interim period; whether the city had any obligations towards the occupiers in the prevailing circumstances and when and how the city could or would fulfil those obligations. Engaging in meaningful discussion about these issues might be a burdensome task but is by no means impossible for the local authority; at the same time, the occupiers must cooperate and not engage in intransigent and unreasonable attitudes.145
The Constitutional Court subsequently explained that it had issued the interim order:
because it was not appropriate to grant any eviction order against the occupiers, in the circumstances of this case, unless there had at least been some effort at meaningful engagement…The ejectment of a resident by a municipality in circumstances where the resident would possibly become homeless should ordinarily take place only after meaningful engagement.146
Accordingly, the court emphasised, meaningful engagement should in cases like this take place prior to litigation unless it is impossible for some compelling reason.147 The court confirmed the so-called ‘post-engagement agreement’ reached by the parties, in terms of which the evictions were postponed and some buildings were rendered safe for occupation, while alternative accommodation was provided for occupiers of other buildings. In its decision, the Constitutional Court rejected the idea that the municipality could simply rely on its statutory powers to evict people from unsafe buildings and ignore the effect of eviction on the occupier.148 The city must simultaneously take responsibility for safe and healthy buildings and for the welfare of its residents; it cannot just carry out the one obligation and ignore the other.149
In the decision150 in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae)151 the Constitutional Court’s evolving approach to eviction cases culminated in a decision that illustrates the issues in this essay very nicely. The case involved the relocation of 4,386 households (around 20,000 residents) from an informal settlement known as Joe Slovo, about 10 kilometres to the east of Cape Town, in order to facilitate the development of better quality housing than the existing informal housing. The residents of Joe Slovo were to be relocated to an area known as Delft, about 15 kilometres away. The undeveloped land where the Joe Slovo settlement was situated152 belonged to the City of Cape Town. There was a dispute on the facts about the question whether the residents ever had real or constructive permission to occupy the land, especially since the city had provided the residents with certain facilities and infrastructure,153 but the court decided unanimously that the residents were unlawfully occupying the land by the time the relocation application was brought. The majority of the Constitutional Court154 held that the residents did have constructive permission at some point, but decided that the permission was revoked when the city began making preparations to clear the land for development of formal housing.
The eviction order for the relocation of the community was brought by the body charged with development of Joe Slovo, Thubelisha Homes and the provincial and national housing ministers. The High Court155 granted the order as applied for, directing the residents of Joe Slovo to vacate the area, to move to Delft according to a prescribed relocation schedule, where necessary with assistance from the applicants, and not to return to Joe Slovo or to erect informal structures there again. This decision was taken on appeal to the Constitutional Court.
The planned redevelopment of Joe Slovo forms part of the N2 Gateway Housing Project, which is intended to eradicate all informal developments and structures in the Cape Peninsula, and which is itself a part of the national Breaking New Ground policy to replace informal housing structures with formal housing all through South Africa.156 According to the development plan for Joe Slovo, housing would be provided in three phases, each consisting of housing made available to poor people at minimal rentals, housing available at higher rentals, as well as credit-linked housing for people who could afford it, on the basis of privately obtained loans secured by mortgages.157 During the already completed Phase 1 and the current Phase 2 promises had already been broken in that no housing was provided for the poorest and that the rental housing was made available at much higher prices, but the applicants assured the court that this would change in Phase 3. There were also concerns about the earlier promises that 70 per cent of the new housing would be made available to former residents from Joe Slovo, as opposed to people from other surrounding informal settlements. In the event the Constitutional Court granted the eviction and relocation order, but made it explicitly subject to the condition that 70 per cent of the new housing would be made available to former residents from Joe Slovo.158 The court further specified the quality of the temporary accommodation in which the occupiers will be housed after the eviction and required an ongoing process of engagement between the residents and the respondents concerning the relocation process, to ensure that the negative impact of the relocation on the community was alleviated as far as possible.159 In justifying its decision that the relocation was a reasonable strategy in the state’s effort to comply with its housing obligations under the Constitution, the court recognised the hardship that relocation would cause, but held that causing the hardship in this case was justified by the purpose of the relocation and ameliorated by the special conditions placed on the relocation order:
It is true, as is emphasised by the amici, that this relocation would entail immense hardship. I have considerable sympathy with the applicants, but there are circumstances in which this Court and all involved have no choice but to face the fact that hardship can only be mitigated but can never be avoided altogether. The human price to be paid for this relocation and reconstruction is immeasurable. Nonetheless it is not possible to say that the conclusion of the City of Cape Town, to the effect that infrastructural development is essential in the area and that the relocation of people is necessary, is unreasonable. There are circumstances in which there is no choice but to undergo traumatic experiences so that we can be better off later. Significantly, they are ameliorated by the state undertaking to provide transport and to ensure that schooling is available to children and that people moved to Delft can get to work.160
This aspect of the decision, on which the court was unanimous, emphasises an important point that is sometimes overlooked in the expropriation and/or eviction for development cases, namely that it is possible or at least easier to justify what might otherwise be an impossibly unfair eviction (and, in some instances, the expropriation that gives rise to the eviction), if those who are displaced by it also stand to profit from or share in the advantages of the redevelopment. In cases where development takes place at the cost of people and communities that lose their homes, this not only means that the development should at least also provide new housing to replace the homes that were lost, but also that the same people and communities should get secure and preferential access to the housing provided in the new development. In the absence of such a guarantee of access to the benefits of the development, the eviction (and possibly the expropriation) might well be impossible to justify.
This problem was at the heart of the Smith case and was also, to judge from subsequent developments, a crucial aspect of local resistance to the Kelo displacement. If the objectors in Smith and Kelo were assured of secure and preferential access to suitable replacement housing in the respective new developments, neither might have ended in litigation. This point also underlines the significance of the distinction I made earlier between cases like Kelo and Smith on the one hand and Hawaii Housing and James on the other, in the sense that it seems at least arguable that the dispossession and displacement that took place in the latter group of cases might be easier to justify because the aim was to improve the currently inequitable land distribution.
Moseneke DCJ makes it abundantly clear that he regarded the assurance of access to housing in the development as a crucial factor in the decision:
I must emphasise that, on the facts of this case, I would have had great difficulty in holding that it is just and equitable to forcibly evict the residents of Joe Slovo and to relocate them far from their homes and modest comfort zones in order to give way to the construction of new subsidised homes in circumstances where the evicted residents would have had no reasonable prospects of satisfying their own dire need to access adequate housing. That eviction and relocation order would have made the residents of Joe Slovo sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing by way of permanent and adequate housing for themselves.161
The Constitutional Court decision in Residents of Joe Slovo is also significant for the purposes of this article because it interestingly demonstrates the change of thinking that is required if we were to rethink the worrying aspects of expropriations and evictions for economic development. One of the most important aspects of the idea of home that Lorna Fox emphasised in her work162 is the effect that legal doctrine, and particularly rights doctrine, has on the way in which we see and treat people’s homes as legal objects or commodities. Within the framework of rights and commodities, the legal label we attach to the interest that a person can prove in her home largely determines whether she can successfully defend that interest against the exercise of state powers such as compulsory acquisition and forced relocation. As long as we focus exclusively on rights and legal powers and entitlements, it is difficult to defend what may look like a nebulous home interest against seemingly legitimate exercises of state power or of private rights. Within this context it is fascinating to observe the subdued163 but vitally important164 difference of opinion between Constitutional Court judges who wanted to approach the issue from the perspective of legal doctrine and those who rejected such an approach.
In his minority judgment,165 Yacoob J refused to accept that the residents could ever have had permission to occupy the land, arguing that ‘occupation is either lawful or unlawful’,166 that tacit consent can only be construed as ‘tacit voluntary agreement’,167 that there is no reason why the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) should require a wider interpretation of the notion of consent,168 and that there was no cogent evidence to suggest that the city had ever given its consent to the occupiers to remain on the land as of right.169 However, some of the other judges baulked at the prospect of even labelling the residents of Joe Slovo unlawful occupiers.170 The majority decided that the notion of consent in PIE had to be construed generously171 and that, on the facts, the residents of Joe Slovo had constructive or tacit consent to occupy the premises during the late 1990s.172 Until the point when consent was cancelled when the city started making its intention clear to go ahead with the relocation and redevelopment, they were therefore lawful occupiers of the settlement.
However, even more interesting than this accommodating but ultimately technical decision on the facts are the clear indications that some judges considered the traditional label of unlawfulness simply inappropriate for the case, considering the socio-economic173 and personal circumstances of the residents and the constitutional and legal obligations of the state as owner of the land and as provider of housing. Although he agreed with his colleagues on the outcome of the case and the order, Ngcobo J refused to be drawn into deciding whether the residents were unlawful occupiers.174 Arguing that the state acts in accordance with its constitutional duties by not simply evicting homeless people who may find themselves to occupy land without permission and that such tolerance should not be read as granting consent or occupation rights,175 Ngcobo J preferred to approach the matter from the point of view that, where people are:
to be relocated in order to pave the way for the implementation of a government programme aimed at providing residents with adequate housing, the proper question to ask is not whether the residents are unlawful occupiers, but whether it is in the public interest and thus just and equitable to relocate them for that purpose.176
Sachs J, pointing out that ‘[t]his is not a matter in which formal legal logic alone can solve the conundrum of how to do justice to the one side without imposing a measure of injustice on the other’,177 argued that the court had to avoid attempting to distinguish right from wrong and adopt the ‘intellectually more modest role of managing tensions between competing legitimate claims’.178 Placing the case squarely within the framework of earlier Constitutional Court decisions mentioned above,179 Sachs J pointed out three significant elements of the Joe Slovo case: firstly, the state authorities were not seeking the evictions on behalf of ‘private landowners seeking vacant possession of land they own or are about to acquire’, but to ‘secure governmental interests’. Secondly, the community was relatively settled and had been on the land for long periods up to 15 years. Thirdly, the eviction was not sought ‘to secure vacant possession’ to enable the owner to do with it as it pleases or to ‘open the way to private entrepreneurial activity’, but to ‘secure the improvement of the housing conditions’ of the occupiers themselves, who are thus not to be removed from the land permanently.180 Against this backdrop, Sachs J, whose approach resembled that of Ngcobo J closely on this point, aimed at what he refered to as a ‘transformative approach to section 26’,181 according to which the question of the lawfulness of the occupation of state land:
by homeless families must be located not in the framework of the common law rights of landowners, but in the context of the special cluster of legal relationships between the council and the occupants established by the Constitution and the Housing Act.182
Following on this approach, the relationship between the parties cannot be determined purely according to the logic of private law rights, but rather by ‘an articulation of public responsibilities in relation to the achievement of guaranteed social and economic rights’.183 Therefore, the lawfulness of the residents’ occupation of land in the Joe Slovo settlement must be determined with reference to the relevant constitutional and statutory housing framework and not according to the precepts of private law.184
The approach followed by Ngcobo and Sachs JJ highlights perhaps the two most significant aspects of the decision in Joe Slovo. Firstly, both judges attempt to extract what is for them a difficult and painful decision from the normal logic of both private law rights and public law powers used for the promotion of private interests. Instead, they try and insert the decision into a completely different logic of state responsibility towards the provision of housing, thereby indirectly acknowledging the importance of what Lorna Fox calls the home interest for all eviction cases, albeit within the perhaps unique framework of post-apartheid South African housing policy and legislation. The correct context for this and other, similar decisions, they emphasise, is the matrix of constitutional and statutory provisions that set out the obligations of the state with regard to provision of housing. Secondly, especially Ngcobo J makes it abundantly clear that he would not have countenanced the order allowing the relocation to proceed if it were not for the assurance that the redevelopment would provide the Joe Slovo community direct and guaranteed access to the new housing stock.185
The South African Port Elizabeth Municipality, City of Johannesburg and Joe Slovo decisions are both similar to and different from the US Kelo and English Smith cases discussed earlier, and it is important in evaluating these decisions to recognise the similarities and differences. The cases are similar in the significant respect that they all involved eviction of individual residents from their homes on the initiative of a local authority acting in terms of one of its statutory powers (expropriation or land-use control).186 In some cases, namely Kelo, Smith, City of Johannesburg and Joe Slovo, the local authorities were explicitly exercising their powers to evacuate private land with a view to redevelopment.187 In Kelo the properties were not necessarily blighted, but the area was in economic decline and it was foreseen that development would improve the whole area. In Smith the area was seriously neglected and in need of development; in City of Johannesburg at least some of the properties were considered health and safety risks. In Joe Slovo the area was prone to fires and in need of redevelopment. Development promised general improvement and economic progress in all cases, but it was not foreseen in all of them that the affected previous occupiers would benefit from the improvements directly or indirectly, at least not in the sense of acquiring rights in the newly developed area. In that respect, Joe Slovo is unique in explicitly requiring that the development should benefit the occupiers.
The most obvious difference between the cases is that Kelo and Smith were expropriation cases, where eviction and displacement resulted from compulsory state acquisition of the land for the sake of economic development. In Port Elizabeth Municipality the land remained in private hands and the eviction was merely aimed at clearing unlawful occupiers off the property. In City of Johannesburg the land also remained in private hands and the local authority used its public health and safety regulatory powers to clear the land for economic development. In Joe Slovo the land belonged to the local authority and relocation was explicitly intended to enable the building of social housing. In Port Elizabeth Municipality and City of Johannesburg the land was privately owned and the local authority could theoretically have used its power of expropriation to obtain the land for state housing development but ironically, in view of the South African government’s strong constitutional duty to provide access to housing,188 the post-1994 South African government has been extremely cautious in using this power to acquire land for redistributive purposes or to expropriate large areas of residential land for more or less any purpose. As a consequence, there are no big expropriation for development cases to compare with the US or UK decisions discussed earlier.
The most significant difference between the cases discussed earlier is the explicit focus on redevelopment for housing purposes in the South African cases and the courts’ recent insistence that those who are displaced by such a development should also benefit from it. The Joe Slovo decision has now made it clear that relocation of a settled community would probably only be tolerated if the same community also benefits from the development. Economic development could in these cases not exclude the evictees from its benefits. In that sense, the City of Johannesburg and Joe Slovo cases resemble cases like James v UK189 or Hawaii Housing Authority190 more closely than they do Kelo or Smith, where the redevelopment was aimed at upmarket uses and users and not at the kind of residents initially evicted from the property.191
Another glaring difference between the cases is of course the reformist or transformative context within which one has to read the South African cases. In the first place it is necessary, as Sachs J reminds one in Port Elizabeth Municipality, to read the South African land and housing legislation and case law in its historical and constitutional context: access to land and housing was distorted seriously by the discriminatory land laws and practices of apartheid, and the tenor of the post-1994 legislation and case law is inevitably affected by efforts to redress the resulting imbalances and injustices. Whatever one chooses to think about the US Supreme Court’s deferential approach to eminent domain condemnations or about the legitimacy of economic development expropriations generally, the South African historical and constitutional context is unique and has to be taken into account when comparing the legislation or case law referred to above. Moreover, it has to be kept in mind that legislation has long been in place, in some cases extensively (Germany and the UK), to provide for some of the housing goals now set out in the South African Constitution, even though these countries did not have the same historical baggage to deal with.
Given these similarities and differences, the most significant inference to be drawn from the comparative analysis of these cases is that the human rights inspired advances that have been made over the past decade or so in the recognition and protection of the home interest in general eviction law may well be rendered empty unless the legal and logical strategies that were developed in ‘normal’ eviction cases are extended to cases where eviction results from relocations for the sake of economic development. In this context, we should recognise a special interplay developing between the common law, legislation and constitutional or human rights principles. Whenever expropriation and land-use regulation aimed at economic or general redevelopment causes dispossession and displacement from people’s homes, heightened judicial scrutiny is called for. In redevelopment cases, the legitimacy of both the expropriation (if there is one) and the relocation should be tested in terms of the matrix of constitutional and statutory measures that describe state responsibility with regard to housing and that directly or indirectly protect home interests in most modern countries, and not purely according to the logic of private rights (including the right to compensation) or state powers (including the power of eminent domain). Protection of the home interest cannot always trump the power to expropriate private property for a public purpose, but when homes and communities are destroyed for a public purpose the expropriation should actually serve a real and serious public purpose, and when the public purpose relates to economic development the affected residents and community should benefit from it. Unless the residents who are evicted to facilitate economic development benefit from direct and secure access to new and better housing in the new development, both as individuals and as a community, it should be very hard, in all but the most exceptional cases of real and serious public necessity, to justify either the taking of individual property or the resulting eviction that destroys the community.
1 Thanks to Sue-Mari Maass for invaluable research and editing assistance and comments and to Gustav Muller, Eduardo Peñalver, Lorna Fox O’Mahony and participants in the Durham Institute for Advanced Study seminar for useful feedback. The views expressed in this chapter are those of the author and should not be attributed to any of these institutions or to the Institute of Advanced Study, Durham University.
2 The phrase ‘presumptive power of property’, in the sense of favouring ownership by placing the onus of proof on anyone who challenges or opposes the owner’s right to evict, is used by J.W. Singer, Entitlement— The Paradoxes of Property (Yale University Press, New Haven 2000) 3; L.S. Underkuffler, The Idea of Property: Its Meaning and Power (Oxford University Press, Oxford 2003) 65–70.
3 In South African law the landowner evicts an occupier with the rei vindicatio. The plaintiff merely has to prove that she is the owner of property occupied by the defendant; it is then up to the defendant to prove that he has a valid right of occupation that is enforceable against the owner. The owner does not have to establish that the defendant’s occupation is unlawful; once ownership has been proved, the defendant has to raise and prove a valid right of occupation. The requirements were set out in Chetty ν Naidoo 1974 (3) SA 13 (A), recently confirmed by the Supreme Court of Appeal in Dreyer NO and Another ν AXZS Industries (Pty) Ltd [2006] 3 All SA 219 (SCA) para. 4 and by the Constitutional Court in Van der Merwe ν Taylor NO 2008 (1) SA 1 (CC) paras 131–2. The principles were recently confirmed specifically in the context of eviction in De Villiers ν Potgieter and ors NNO 2007 (2) SA 311 (SCA) paras 12–13 and Jackpersad NO and ors ν Mitha and ors 2008 (4) SA 522 (D) 528H-529A.
4 Most countries have legislation that regulates the termination of a lease and that may therefore shield a tenant from eviction, which is usually premised upon lawful termination of the lease. In some cases, tenants may in terms of legislation be distinguished from and have a stronger (property) right to occupy than licensees. In South African law the most important law is the Rental Housing Act 50 of 1999. In German law, tenant protection is based on §§ 535-580 of the Civil Code (Burgerliches Gesetzbuch; BGB) and the Landlord-Tenant Framework Act (Mietrechtsrahmengesetz)2001. Similar protection appears in the Dutch Civil Code (Burgerlijk Wetboek;BW) 7:201-7:282. In English law tenant protection is based on a patchwork of legislation, the most relevant of which are the Rent Act 1977, the Housing Act 1985 and the Housing Act 1988. Apart from tenants, legislation can also protect other categories of lawful occupiers or even unlawful occupiers or squatters against arbitrary or otherwise unjust eviction. South African examples include the Extension of Security of Tenure Act 62 of 1997 (lawful occupiers of rural land) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (unlawful occupiers of all land). An important English example is the Mobile Homes Act 1983.
5 Abstract enforcement of the right to exclusive possession means that the right is enforced without reference to the personal circumstances of the parties, such as the hardship that eviction might cause for the occupier. In Roman-law-based civil law jurisdictions, the landowner’s right to evict is founded on the so-called absolute right of ownership, which is the origin of the entitlement of exclusive possession. In English common law jurisdictions, eviction is based on the relatively stronger right to possession, which may or may not accrue to the ‘landowner’, in so far as such a notion exists. See S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 48-9, citing W. Swadling, ‘Property: General Principles’ in P. Birks (ed.), English Private Law vol I (Oxford University Press, Oxford 2000) 218: strictly speaking, English land law has no concept of ownership since property in land is protected as possession. Despite the differences, eviction amounts to the enforcement of the stronger right to possession in both systems and therefore I do not distinguish between English Common Law and South African (Roman-Dutch) common law, at least not for purposes of this paper. See R. Zimmermann and D.P. Visser, ‘Introduction: South African Law as a Mixed Legal System’ in R. Zimmermann and D.P. Visser (eds), Southern Cross: Civil Law and Common Law in South Africa (Oxford University Press, Oxford 1996).
6 The jurisprudential meaning and significance of the notion of the home interest was worked out most comprehensively by L. Fox, Conceptualising Home: Theories, Laws and Policies (Hart Publishing, Oxford 2007). See further L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 9 Journal of Law & Society580. Given the nature of the collection I will not repeat or summarise Fox’s idea of the home interest here, but see n. 98.
7 Most countries have legislation that regulates eviction by proscribing arbitrary and abusive eviction and imposing minimum due-process guarantees. In South African law arbitrary eviction is prohibited in s. 26(3) of the Constitution of the Republic of South Africa 1996; the most important legislation promulgated to give effect to this provision is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (see n. 7). In English law the anti-eviction protection of the Protection from Eviction Act 1977 is both complemented and qualified by the Housing Act 1985, the Housing Act 1988 and the Anti-Social Behaviour Act 1996. The Dutch and German civil codes regulate the eviction of tenants (n. 3 above), while eviction of illegal occupiers is regulated in § 138 of the Dutch Criminal Code and § 123 of the German Criminal Code; see A.J. van der Walt, Property in the Margins (Hart Publishing, Oxford 2009) 137–43.
8 In South African law eviction is regulated by s. 26(3) of the Constitution, which provides that no one may be evicted from their home, or may have their home demolished, without an order of court made after considering all the relevant circumstances. Legislation may not permit arbitrary evictions. In response to this constitutional obligation the legislature has promulgated the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, which regulates eviction of unlawful occupiers. Several other statutes regulate eviction of lawful occupiers; see A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) 308–53 for an overview. In terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) (1950) Art. 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence; the reference to ‘his home’ is treated as a human rights regulation of eviction. The impact of this instrument of regional human rights law on domestic English law, where tenants and other occupiers of residential property already enjoyed either substantive or procedural protection (or both) against eviction in terms of legislation, was mediated through the Human Rights Act 1998. See the references in S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 281–4, 610–13 and compare nn. 8, 9, 15.
9 The South African Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 provides in s. 4(6) that, when the occupation was for less than six months, a court may grant the eviction order if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. S. 4(7) adds that, when the occupation was for longer than six months, the court must also consider whether suitable alternative accommodation has been or could be made available to the occupiers. In English law, reasonableness or the availability of suitable alternative accommodation (or both) features in eviction actions involving public tenancies; in some private tenancies reasonableness may also be a factor. When reasonableness has to be considered, the courts have to look at the context of the case as a whole, including factors that pertain to the personal circumstances of the tenant: S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 599, 601–602; K. Gray and S.F. Gray, Elements of Land Law (5th edn Oxford University Press, Oxford 2009) 4.7.31–34.
10 See nn. 7, 8, 15; and compare Connors ν UK (App no 66746/01) (2005) 40 EHRR 9 [68], [69], where it was confirmed that a summary eviction of gypsies from a local authority site was an interference with their Art. 8 ECHR right to respect for private life, family life and home. In Chapman ν UK (App no 27238/94) [2001] 33 EHRR 399 [73] it was held that there is a positive obligation on the contracting ECHR states in terms of Art. 8 to ensure that it is possible for gypsies to maintain their identity and to lead their lives according to tradition, and the recent decision of the UK House of Lords in Doherty ν Birmingham City Council [2008] UKHL 57 allows for context to be taken into account through judicial review of public authority decisions to evict. However, in Dutch case law and commentaries from the 1970s it was confirmed that context-sensitive protection of urban squatters against arbitrary eviction did not establish an indirect or so-called ‘reflexive’ right to occupy: see A.J. van der Walt, Property in the Margins (Hart Publishing, Oxford 2009) 140—41.
11 K. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal of Human Rights 146, 167 explains that lawyers, trained to regard the ‘intellectual sensibilities’ and assumptions of their legal culture as normal, see the authority and force of its arguments as innate to the types of argument used and not as contingent cultural artefacts. Consequently, in the absence of critical reflection, lawyers become so embedded in their legal culture that they are ‘unaware or only partially attentive to’ the power of the cultural code to shape their ideas and steer their reaction to legal problems.
12 See n. 8. The South African courts have generally had little difficulty in applying the reasonably clear anti-eviction provisions in s. 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, but they have been less open to reformist interpretations of the less explicit s. 26(3) of the Constitution. For similar reasons, anti-eviction measures in other land reform laws, which may seem to offer stronger protection because they confer occupation rights, are in fact used less often because these other laws do not specify the circumstances where eviction is restricted as clearly and the courts therefore tend to interpret them more restrictively. See A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) 338–53.
13 Three cases decided by the South African Constitutional Court are discussed below: Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC); Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC); Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC).
14 There is evidence that the obligation to consider reasonableness in some eviction cases does not always work in English law, in that the participation of tenants and the courts’ actual consideration of the reasonableness factors are limited in fact: S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 599, 601–602. In South African law, courts have been loath to amend the strong owner-oriented common law eviction procedure, even in view of the direct authority of s. 26(3) of the Constitution, unless they are explicitly or very clearly instructed to do so by clear and unambiguous legislation: Brisley ν Drotsky 2002 (4) SA 1 (SCA) paras 40–41. Compare n. 11.
15 The notion of the ‘home’ interest in the context of tenure security and eviction has been highlighted particularly by L. Fox, Conceptualising Home: Theories, Laws and Policies (Hart Publishing, Oxford 2007). See further L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 9 Journal of Law & Society 580.
16 It is at least accurate to say that anti-eviction legislation has been promulgated or amended in view of human rights requirements in a number of jurisdictions and that eviction law is thereafter applied with due regard for human rights standards. In South African law, s. 25(6) of the Constitution places an additional obligation (on top of the anti-eviction provision in s. 26(3)) on the state to provide tenure security for persons and communities whose tenure of land is legally insecure because of apartheid. Residential tenants, especially in the former black townships, certainly fall within this category. In the UK a similar effect was created by promulgation of the Human Rights Act 1998 and the consequent incorporation of the ECHR into English law – subsequent case law (see the references below) clearly demonstrates the effect that the human rights perspective has had on the development of common law and statutory eviction law, despite the fact that English pre-1998 landlord-tenant legislation had already accomplished some of the goals associated with human-rights inspired protection against eviction. See further S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 281–4, 610–13; K. Gray and S.F. Gray, Elements of Land Law (5th edn Oxford University Press, Oxford 2009) 4.7.31–34.
17 For South African law, some aspects of this development are discussed in A. J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) ch. 6; A.J. van der Walt, Property in the Margins (Hart Publishing, Oxford 2009) chs 2–5. For English law see K. Gray and S.F. Gray, Elements of Land Law (5th edn Oxford University Press, Oxford 2009) ch. 4.7; see generally S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007).
18 In landlord-tenant law it is important to distinguish between private and public tenancies; see n. 8. In civil law jurisdictions, it is important to distinguish between eviction from private and from state land, since the landowner would usually initiate eviction proceedings. Of course, the state can also act as a private landowner to evict unlawful occupiers from state land. However, it is always possible for the state to initiate an eviction, even from private land, for instance in terms of regulatory legislation that protects public health and safety. For the moment I am only interested in evictions initiated by the state, regardless of whether the land is privately or state owned. Because of my focus I do not dwell on distinctions that might otherwise have been important, such as whether the land is privately or state owned, whether the occupation was lawful or unlawful, whether the tenancy (if there was one) was private or public and whether the occupier was a tenant or a licensee.
19 Of course the procedure I describe also applies to agricultural, industrial or commercial property, but for the present I am particularly interested in the effect that it has on occupiers of residential property, that is, on what Lorna Fox describes as the home interest.
20 In some of the cases I discuss, eviction follows from expropriation, condemnation or compulsory acquisition of the land, but in others the land already belongs to the state and is merely cleared for development; in yet others the land remains in private hands but the state uses its land-use regulatory powers to clear the land for development. What ties these cases together for my purposes is the exercise of state power, intended to promote economic development that involves eviction of the current residents.
21 545 US 469 (2005).
22 My summary of the facts relies on the judgment of Stevens J for the court, 545 US 469 (2005) 472–7, and on Institute for Justice, press release ‘Susette Kelo Lost her Rights, She Lost her Property, but She has Saved her Home’ (available at http://www.nolandgrab.org/archives/2006/07/institute_for_j.html, accessed 3 September 2009).
23 348 US 26 (1954).
24 467 US 229 (1984).
25 Stevens J delivered the majority opinion, in which Kennedy, Souter, Ginsburg and Breyer JJ joined. Kennedy J filed a concurring opinion. O’Connor J filed a dissenting opinion, in which Rehnquist CJ and Scalia and Thomas JJ joined. Thomas J filed a dissenting opinion. Interestingly, O’Connor J wrote the majority opinion for the court in Hawaii Housing Authority ν Midkiff 467 US 229 (1984), setting out the deference approach on which the Kelo decision is based, but she dissented from the majority in Kelo.
26 I do not propose to analyse the decision in detail here; see the literature referred to below. What follows is just a brief overview of salient points for purposes of the argument in this essay.
27 Kelo ν City of New London 545 US 469 (2005) 480.
28 Ibid. 480–2, referring to the deferential approach adopted in Berman ν Parker 348 US 26 (1954) and Hawaii Housing Authority ν Midkiff 467 US 229 (1984).
29 Kelo ν City of New London 545 US 469 (2005) 484.
30 Ibid. 486–7.
31 See Institute for Justice press release ‘Susette Kelo Lost her Rights, She Lost her Property, but She has Saved her Home’ (available at http://www.nolandgrab.org/archives/2006/07/institute_forj.html, accessed 3 September 2009).
32 Ibid.
33 Ibid. However, three years later, the additional compensation has not yet been paid and it looks uncertain that it ever will: Bizzy Blog, ‘The Kelo-New London Calamity Continues’ (2008) (available at http://www.bizzyblog.com/2008/06/03/the-kelo-new-london-calamity-continues-barren-land/, accessed 3 September 2009).
34 The newly erected house at 36 Franklin Street in the heart of New London was dedicated on Saturday 21 June with a weekend celebration and a ribbon-cutting ceremony. See FCTO, ‘Pink House that Inspired a Nation Reopened this Weekend’ (available at http://www.ctact.org/default.asp?callcontent=yes&filename=Kelo.htm%20%20%20&location=eminent_domain&buttonname=Eminent%20Domain, accessed 26 May 2009).
35 See FCTO, ‘Pink House that Inspired a Nation Reopened this Weekend’ (available at http://www.ctact.org/default.asp?callcontent=yes&filename=Kelo.htm%20%20%20&location=eminent_domain&buttonname=Eminent%20Domain, accessed 26 May 2009).
36 See Institute for Justice press release ‘Susette Kelo Lost her Rights, She Lost her Property, but She has Saved her Home’ (available at http://www.nolandgrab.org/archives/2006/07/institute_for_j.html, accessed 3 September 2009).
37 The Executive Order states that ‘It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken’ (emphasis added). See G.W. Bush, ‘Executive Order: Protecting the Property Rights of the American People’ (2006) (available at http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/20060623–10.html6, accessed 3 September 2009). Most takings of the Kelo type take place on the state or local level and therefore the Executive Order will have no direct effect, although the increase of statutory prohibitions against takings for development suggests that the effects of anti-Kelo reaction might be felt on the state level as well. See the references to state reactions in nn. 37–9 below. See further I. Somin ‘Fost-Kelo America: Assessing the Progress of Eminent Domain Reform’ (2007) (available at http://www.reason.com/news/show/119766.html, accessed 3 September 2009), who argues that the Executive Order is ineffectual in that it allows ‘takings for private owners who promise to use the land for both private and “public” development’, which is more or less the argument accepted in the Kelo decision.
38 See Wikipedia, ‘Kelo ν City of New London’ (available at http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London, accessed 3 September 2009).
39 Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington: see more detail at Wikipedia, ‘Kelo ν City of New London’ (available at http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London, accessed 3 September 2009).
40 These prohibitions usually do not cover condemnations to rectify urban blight or slum conditions.
41 See Wikipedia, ‘Kelo ν City of New London’ (available at http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London, accessed 3 September 2009). See further S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ (2007) JPEL 1102, 1105. CE Cohen, ‘Eminent Domain after Kelo ν City of New London: An Argument for Banning Economic Development Takings’ (2005–2006) 29 Harvard JL & Public Policy 491, 559–66 reviews the substance of state laws that ban takings for economic development and considers the problems experienced with different approaches in the legislation. A.W. Goodin, ‘Rejecting the Return to Blight in Post-Kelo State Legislation’ (2007) 82 NYULR 177, 192–207 also reviews the posl-Kelo legislation and criticizes it for being either ineffectual or too caught up in the unhelpful rhetoric of blight. See further I. Somin, ‘Fost-Kelo America: Assessing the Progress of Eminent Domain Reform’ (2007) (available at http://www.reason.com/news/show/119766.html, accessed 3 September 2009), who argues that the Executive Order is ineffectual in that it allows ‘takings for private owners who promise to use the land for both private and “public” development’, which is more or less the argument accepted in the Kelo decision.
42 A. Bell and G. Parchomovsky, ‘The Uselessness of Public Use’ (2006) 106 Col LR 1412, 1415 argue that ‘Kelo was rightly decided and that criticisms of the decision are ill conceived and misguided.’ They argue (at 1412), amongst other things, that the power of ‘eminent domain is the government power least pernicious to property owners as it is the only one that guarantees them compensation.’ D. Schultz, ‘What’s Yours can be Mine: Are there any Private Takings after Kelo ν City of New London?’ (2005–2006) 24 UCLA Journal of Environmental Law & Policy 195 argues that Kelo establishes a new test that is not entirely satisfactory but still in line with the public use requirement, based on the existence of a specific development plan, which provides the framework within which the power of eminent domain has to be exercised.
43 The most comprehensive case is made by C.E. Cohen, ‘Eminent Domain after Kelo ν City of New London: An Argument for Banning Economic Development Takings’ (2005–2006) 29 Harvard JL & Public Policy 491.
44 K. Gray and S.F. Gray, Elements of Land Law (5th edn Oxford University Press, Oxford 2009) 11.2.9.
45 Ibid., 1.5.36.
46 K. Gray, ‘Human Property Rights: The Politics of Expropriation’ (2005) 16 Stell LR 398, 401.
47 D. Schultz, ‘What’s Yours can be Mine: Are there any Private Takings after Kelo ν City of New London?’ (2005–2006) 24 UCLA Journal of Environmental Law & Policy 195, 196, 218; T.W. Merrill, ‘Six Myths about Kelo’ (January-February 2006) 20 Probate & Property 19 (‘Myth 1’); L.S. Underkuffler, Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 377. If anything, the court’s finding that ‘the City [would not] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit’ (Kelo ν City of New London 545 US 469 (2005) 478, emphasis added) might indicate an interpretation of the public use requirement that would be more protective of homeowners’ rights than Hawaii Housing Authority ν Midkiff 467 US 229 (1984), where the court seemed to suggest that any conceivable public purpose would justify the taking. I am indebted to Eduardo Peñalver for pointing this potentially restrictive interpretation out to me.
48 348 US 26 (1954).
49 467 US 229 (1984).
50 Berman v Parker 348 US 26 (1954) 32–3.
51 The court confirmed in Hawaii Housing Authority ν Midkiff 467 US 229 (1984) 240 that the public use requirement in the Takings Clause is ‘coterminous with the scope of a sovereign’s police powers’. See M. Taggart, ‘Expropriation, Public Purpose and the Constitution’ in C. Forsyth and I. Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Oxford University Press, Oxford 1998) 91–112, 99–100; D. Schultz, ‘What’s Yours can be Mine: Are there any Private Takings after Kelo ν City of New London?’ (2005–2006) 24 UCLA Journal of Environmental Law & Policy 195, 209–11; C.E. Cohen, ‘Eminent Domain after Kelo ν City of New London: An Argument for Banning Economic Development Takings’ (2005–2006) 29 Harvard JL & Public Policy 491.
52 I return to this distinction below, arguing that it is a vital one that could insulate the decision in Hawaii Housing Authority against at least some of the criticism levelled against Berman and Kelo.
53 304 NW2d 455 (Mich 1981), overruled in County of Wayne ν Hatchcock 684 NW2d 765 (Mich 2004). On the Poletown decision see F. Michelman, ‘Property as a Constitutional Right’ (1981) 38 Wash & Lee LR 1097; D. Schultz, ‘What’s Yours can be Mine: Are there any Private Takings after Kelo ν City of New London?’ (2005–2006) 24 UCLA Journal of Environmental Law & Policy 195; L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 377.
54 Poletown Neighborhood Council ν City of Detroit 304 NW2d 455 (Mich 1981) 459.
55 684 NW2d 765 (Mich 2004). In this case, the plan was to condemn private properties for the construction of a 1300 acre business and technology park intended to help revitalise the ailing economy of south-eastern Michigan. The Michigan Supreme Court decided that the taking was not for public use because Wayne County intended to transfer the condemned properties to private parties ‘in a manner wholly inconsistent with the common understanding of “public use” at the time our Constitution was ratified.’
56 853 NE2d 1115 (Ohio 2006). See ‘Recent Cases’ (2006) 120 Harvard LR 643.
57 Kelo ν City of New London 545 US 469 (2005) 480.
58 Ibid. 483.
59 Ibid. 483 (emphasis added).
60 [2007] EWHC 1013 (Admin). Another case arising from the same set of facts is Sole ν Secretary of State for Trade and Industry and ors [2007] EWHC 1527 (Admin). The claimant occupied premises in a communal housing scheme for single people in the area affected by the Olympics acquisition. The objection was similar to those in Smith, namely that the acquisition should not be finalised before a secure relocation strategy had been put in place. The court held, like the Smith court, that the decision not to make the compulsory acquisition order conditional on a relocation strategy was justified.
61 Smith & ors ν Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin) [5].
62 The first claimant in Smith, a Romani gypsy, was a licensee of a plot in an authorised caravan site in Newham where she had lived in a caravan, with two children, for 20 years. The second claimant, an Irish Traveller, had lived in a caravan in an authorised caravan site in Hackney, together with her five children, for 13 years. The third claimant, also an Irish Traveller, lived in a caravan at the same site, with three children (two of whom were school-going age). She and one of her children suffered from significant disability. See Smith & ors ν Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin) [1]–[3].
63 Ibid. [7].
64 The details of the inspector’s report on the area are set out in ibid. [14].
65 Ibid. [16], [17].
66 Ibid. [18].
67 Ibid. [8].
68 Ibid. [21].
69 Ibid. [28].
70 (App no 27238/94) [2001] 33 EHRR 399 [73]; see Smith & ors ν Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin) [29]. The decision in Chapman was confirmed in Connors ν UK (App no 66746/01) (2005) 40 EHRR 9 [84].
71 (App no 27238/94) [2001] 33 EHRR 399 [96]; see Smith & ors ν Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin) [29].
72 Ibid. [49].
73 Ibid. [42].
74 Ibid. [50]. T. Hickman, ‘The Substance and Structure of Proportionality’ [2008] Public Law 694, 704 argued that this narrow approach allowed the court to escape the difficult proportionality issues posed by Art. 8 ECHR and that this ‘sidestep’ by the court has the potential ‘to rob the proportionality test of its function as a means for ensuring that there is a fair balance between individual rights and the desires of the general community at least in many cases.’ At 706 Hickman adds that it is often difficult ‘accurately to distil the objectives of a measure to the level of specificity’ relied upon in the case.
75 See P. Winter and R. Lloyd, ‘Regeneration, Compulsory Purchase Orders and Practical Related Issues’ [2006] Journal of Planning and Environmental Law 781: ‘This policy shift towards urban regeneration has led to a significant increase in the use of compulsory purchase powers to assemble sites for redevelopment in the interests of regeneration.’
76 [2005] EWHC 18 (Admin). See S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ [2007] Journal of Planning and Environmental Law 1102, 1108–10.
77 The inspector recommended that the compulsory acquisition order should not be confirmed: Alliance Spring Co Ltd v the First Secretary of State [2005] EWHC 18 (Admin) [7], [10]–[13].
78 S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ [2007] Journal of Planning and Environmental Law 1109.
79 Alliance Spring Co Ltd ν the First Secretary of State [2005] EWHC 18 (Admin) [21].
80 [2004] EWHC 1010 (Admin). See K. Gray and S.F. Gray Elements of Land Law (5th edn Oxford University Press, Oxford 2009) 11.2.8, citing further examples from English law.
81 This principle is also recognised in German law, albeit that it is applied more strictly; see below, n. 84 and associated text.
82 [2006] EWHC 2356 (Admin). See S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ [2007] Journal of Planning and Environmental Law 1108.
83 Pascoe ν First Secretary of State [2006] EWHC 2356 (Admin) [80]; see S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ [2007] Journal of Planning and Environmental Law 1108.
84 Pascoe ν First Secretary of State [2006] EWHC 2356 (Admin) [38], [42], [44], [49]. See S. Crow, ‘Compulsory Purchase for Economic Development: An International Perspective’ [2007] Journal of Planning and Environmental Law, 1108; R. Harwood, ‘Case Comment: Pascoe ν First Secretary of State’ [2007] JPEL 607, 641.
85 See discussion above, n. 80 and associated text, demonstrating that a similar principle applies in English law.
86 BVerfGE 38, 175 [1974] 181ff (German Federal Constitutional Court); BVerfGE 56, 249 (Dürkheimer Gondelbahn) [1981] 260–1, 271 (German Federal Constitutional Court); BVerfGE 97, 89 [1997] 89 (German Federal Constitutional Court). See A.J. van der Walt, Constitutional Property Clauses: A Comparative Analysis (Juta, Cape Town 1999) 147–9.
87 See generally in this regard A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) 254–6.
88 BVerfGE 66, 248 [1984] (German Federal Constitutional Court).
89 BVerfGE 56, 249 (Dürkheimer Gondelbahn) [1981]; BVerfGE 74, 264 (Boxberg) [1986]. See A.J. van der Walt, Constitutional Property Clauses: A Comparative Analysis (Juta, Cape Town 1999) 147–9; A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) 257–8.
90 BVerfGE 56, 249 (Dürkheimer Gondelbahn) [1981].
91 As was pointed out earlier, this judicial attitude resembles the approach of the English courts, with the significant difference that German law is based on the principle of constitutional review and not parliamentary sovereignty. The test is thus whether the necessary legislative authorisation for state action that infringes a constitutional right indeed exists. Unlike the approach of the US Supreme Court, this test for legislative authority is applied strictly, perhaps even more strictly than in the English courts. Somewhat like the English courts in terms of Art. 8 ECHR, the German courts also apply a proportionality test to measure the legislative decision against Art. 14 of the Basic Law, with the significant difference that the notion of a ‘wide margin of appreciation’ that insulates domestic decision making against ECHR controls is absent in German constitutional review.
92 BVerfGE 74, 264 (Boxberg) [1986].
93 See K. Gray and S.F. Gray, Elements of Land Law (5th edn Oxford University Press, Oxford 2009) 11.2.4, citing the Supreme Court of Queensland in Prentice ν Brisbane City Council [1966] Qd R 394,406. Compare James ν UK (App no 8795/79) [1986] 8 EHRR 123 [40]. On German law compare A.J. van der Walt, Constitutional Property Law (Juta, Cape Town 2005) 254–6.
94 As is argued below, this right is strong in South African law because of ss 25 and 26 of the Constitution and in England because of Art. 8 of the ECHR, but in Germany a similar right is construed on the basis of Art. 14 of the Basic Law: BVerfGE 89, 1 (Besitzrecht des Mieters) [1993] (German Federal Constitutional Court). The ECHR is of course also applicable in Germany as a member state.
95 Hawaii Housing Authority ν Midkiff 467 US 229 (1984).
96 (App no 8795/79) [1986] 8 EHRR 123.
97 In that sense the recent decision of the High Court of Ireland in John E Shirley ν AO Gorman [2006] IEHC 27 perhaps also belongs in this category, as would other residential right to buy schemes. The Irish Landlord and Tenant (Amendment) Act 1984 provides a mechanism to fix the purchase price against which tenants who qualify under the Act can acquire the fee simple interest held by their landlords by paying a prescribed percentage of the current value of the lease (as defined in the Act). The reforms brought about by the Act do not involve compulsory acquisition by the state, but nevertheless improve the position of tenants.
98 L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 377. As has been pointed out earlier, not everyone is against expropriation for development, even if it affects home interests. See n. 41 above.
99 As I have stated earlier, I do not intend to reiterate Lorna Fox’s work on home here, given the context and the venue of the seminar for which the essay was written. However, it should be mentioned that she made a telling contribution to the literature on this topic by explaining the ways in which home is more than just a house; see for example, L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 9 Journal of Law & Society 580. In particular, Fox points out that the notion of home involves several aspects besides the physical structure, including the territory where the home is situated, the role that it plays in forming and upholding identity, and the social and cultural aspects. I am indebted to Gustav Muller for reminding me that a similar perception of the home interest found expression in the South African Constitutional Court decision in Government of the Republic of SA ν Grootboom 2001 (1) SA 46 (CC) para. 35 and in the UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 4’ (13 December 1991) UN Doc E/1992/23 para. 8 on the right to housing in Art. 11(1) of the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
100 J. Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81 Notre Dame LR
101 Ibid. 785–6, 803–17. Fee argues at 797 that the public-use solution, which would restrict expropriation to cases where the land is required for actual public use, is over-inclusive in that it would prevent the expropriation of private land for private redevelopment, even when the owner holds the land purely for economic value. It is also under-inclusive in that it would still leave homes vulnerable for traditional public-use expropriations, without any special consideration for their home value. An absolute ban on expropriation of homes would prevent the state from condemning land even for really legitimate and urgent public necessities (at 800–801), while stricter scrutiny suffers from the drawback that its protection relies on the imprecise standards of judicial review (at 802). In this respect Fee perhaps underestimates the German version of stricter scrutiny set out above. C.E. Cohen, ‘Eminent Domain after Kelo ν City of New London: An Argument for Banning Economic Development Takings’ (2005–2006) 29 Harvard JL & Public Policy 491 favours a ban on economic development takings.
102 J. Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81 Notre Dame LR 794–5.
103 E.M. Peñalver, ‘Property Metaphors and Kelo ν New London: Two Views of the Castle’ (2006) 74 Fordham LR 2971. The reference in the article’s title is of course to the famous article of G. Calabresi and A.D. Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harvard LR 1089. Recent articles by Eduardo Peñalver and Gregory Alexander that explore the moral or social-obligation element of property point in the same direction as the other sources I cite here; see e.g. G.S. Alexander, ‘The Social-Obligation Norm in American Property Law’ (2009) 94 Cornell LR 745; E.M. Peñalver, ‘Land Virtues’ (2009) 94 Cornell LR 821.
104 E.M. Peñalver, ‘Property Metaphors and Kelo ν New London: Two Views of the Castle’ (2006) 74 Fordham LR 2971.
105 L. Fox, Conceptualising Home: Theories, Laws and Policies (Hart Publishing, Oxford 2007), particularly ch. 10. Compare n. 98 above.
106 [2004] 1 AC 983 (HL).
107 (App no 66746/01) (2004) 40 EHRR 189.
108 [2006] UKHL 10.
109 (App no 19009/04) (2008) 47 EHRR 40. On these decisions see L. Fox, Conceptualising Home: Theories, Laws and Policies (Hart Publishing, Oxford 2007) 481–518; K. Gray and S.F. Gray, Elements of Land Law (5th edition Oxford University Press, Oxford 2009) 1.6; S. Bright, Landlord and Tenant Law in Context (Hart Publishing, Oxford 2007) 281–4, 610–13.
110 To a certain extent, see the tenor of the criticism that commentators such as Fox, Bright and Gray have against some of the eviction decisions; see the references, ibid.
111 F Michelman, ‘Property as a Constitutional Right’ (1981) 38 Wash & Lee LR 1097, commenting on Poletown Neighbourhood Council ν City of Detroit 304 NW2d 455 (Mich 1981), overruled in County of Wayne ν Hatchcock 684 NW2d 765 (Mich 2004).
112 L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 377, commenting on both Poletown Neighborhood Council ν City of Detroit 304 NW2d 455 (Mich 1981) and Kelo ν City of New London 545 US 469 (2005).
113 Ibid. 380.
114 This is a different formulation of the German constitutional principle that compensation alone cannot justify an expropriation; it is a necessary result of but not an adequate justification for the taking. See n. 84 and associated text.
115 L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 383.
116 F. Michelman, ‘Property as a Constitutional Right’ (1981) 38 Wash & Lee LR 1097, 1113. This aspect is also emphasised by L. Fox; see L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 9 Journal of Law & Society 580.
117 L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 384. Although she places more emphasis on personal identity and social interaction than on political participation, L. Fox, ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge?’ (2002) 9 JL & Society 580 includes this aspect in her analysis of the home interest.
118 L.S. Underkuffler, ‘Kelo’s Moral Failure’ (2006) 15 William & Mary Bill of Rights Journal 384.
119 Ibid. 384.
120 Ibid. 386.
121 As proposed by J. Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81 Notre Dame LR 783 783.
122 It was pointed out at the text to n. 84 above that German constitutional theory generally accepts the principle that expropriation is always seen as a last resort solution to any problem, only to be used when it is properly authorised by legislation and in itself justified by the public purpose it is supposed to serve. The payment of compensation cannot justify the expropriation; it only follows when the expropriation is justified by the public purpose it serves.
123 Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC).
124 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC).
125 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC).
126 The following discussion is based on extracts from A. J. van der Walt, Property in the Margins (Hart Publishing, Oxford 2009) 153–9, where the decisions in Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC) are also discussed.
127 Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC).
128 Ibid. paras 31–2.
129 Ibid. paras 8–23.
130 Ibid. paras 11, 14.
131 Ibid. para. 19. The contextual approach was reiterated in Mphela and ors ν Haakdoornbult Boerdery CC and ors 2008 (4) SA 488 (CC).
132 Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC) para. 23
133 Ibid. para. 31. The court indicated that it would ordinarily not be just and equitable to grant an eviction order unless proper discussions and, where suitable, mediation had been attempted to settle the matter: para. 43. In Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC) this proved to be a central aspect of the court’s approach to evictions in general.
134 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC). The City of Johannesburg, relying on its Inner City Regeneration Strategy, wanted to evict the occupiers from three premises in the Johannesburg municipal area. The properties involved were privately owned, but in some cases they had been abandoned by the owners. Some occupiers were tenants, some were former tenants, some were unlawful squatters. The premises in question were said to present dangerous living conditions, including health and fire hazards, and the city claimed that it would promote public health and safety to ‘evacuate’ the premises as part of the process of reversing inner city decay. In certain instances the eviction notices were accompanied by notices directing the owners to demolish, alter or ‘evacuate’ the buildings.
135 Relying on its powers in the National Building Regulations and Building Standards Act 103 of 1977, the Health Act 63 of 1977 and local fire by-laws.
136 City of Johannesburg ν Rand Properties (Pty) Ltd and ors 2007 (1) SA 78 (W) paras 26, 28.
137 Ibid. para. 29.
138 Ibid. paras 50, 52.
139 City of Johannesburg ν Rand Properties (Pty) Ltd and ors 2007 (6) SA 417 (SCA). The SCA granted the eviction orders and combined them with an order that the local authority should provide temporary accommodation for certain occupiers.
140 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC).
141 Particularly Government of the Republic of SA and ors ν Grootboom and ors 2001 (1) SA 46 (CC) and Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC).
142 Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC) paras 9–23.
143 Ibid. para.16.
144 Ibid. paras 17, 18.
145 Ibid. paras 14, 19, 20.
146 Ibid. para. 22.
147 Ibid. para. 30.
148 Ibid. para. 43.
149 Ibid. para. 44.
150 Decision of 10 June 2009.
151 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC).
152 The land had been settled since about 1990 and residents were regularly subjected to forced removals and destruction of their properties: ibid. para. 20.
153 Ibid. para. 21.
154 Moseneke DCJ, Ngcobo J, O’Regan J, Sachs J and Mokgoro J. Five judgments were delivered. The whole court concurred in the order. Yacoob J disagreed with the majority on just one point, namely whether the residents ever had permission to occupy the premises in Joe Slovo. According to his minority judgment, they never had either explicit or constructive permission. Langa CJ and Van der Westhuizen J concurred in the judgment of Yacoob J. The majority held that the residents did have constructive permission at one stage, but that their permission was revoked when the city started to clear the land for redevelopment in 2004. Four judgments were written in support of this finding: Moseneke DCJ, Ngcobo J, O’Regan J and Sachs J. Sachs J concurred in the judgment of Moseneke DCJ. Moseneke DCJ and Sachs J concurred in the judgment of Ngcobo J. Moseneke DCJ and Mokgoro J concurred in the judgment of Sachs J. See Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 4.
155 Previously the Cape High Court, changed to the Western Cape High Court, Cape Town by the Renaming of High Courts Act 30 of 2008, which commenced on 1 March 2009.
156 Yacoob J discusses the N2 Gateway Project in Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 29 ff.
157 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae; [2009] JOL 23711 (CC) para. 30.
158 The reason why 70 per cent rather than 100 per cent of the new housing is reserved for former residents is the apparently generally accepted fact that the new housing would be less dense than the current informal settlement, where the density of the shacks prevent provision of proper services and roads and access for emergency vehicles.
159 See the summary of the order in Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 5 and the order in para. 7.
160 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 107 (Yacoob J).
161 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 138 (Moseneke DCJ).
162 L. Fox, Conceptualising Home: Theories, Laws and Policies (2007) ch. 6, where she refers to the ‘commoditisation of home’ and ‘property for personhood’.
163 I describe it as subdued because the difference has no impact in the decision, all judges concurring that the residents’ occupation had become unlawful by the time when the relocation application was brought.
164 I qualify it as vitally important because it signifies a crucial difference of approach to legal questions of this nature. Sachs J in Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 329 states that ‘important jurisprudential issues are raised that affect the status, and in my view, the dignity, of a vast number of people throughout the country living in informal settlements.’
165 Yacoob J discusses this aspect in Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) paras 36–82.
166 Ibid. para. 52.
167 Ibid. para. 57.
168 Ibid. para. 68.
169 Ibid. paras 72–82.
170 In ibid. para. 141 Moseneke DCJ refers to what he describes as ‘a constitutional matter that has caused me considerable agony. And that is whether landless people who have no access to adequate housing and who as a result erect homes and live on vacant public land with the knowledge and prolonged support of its owner, a government body, should be regarded as no more than unlawful occupiers’. In ibid. para. 291 O’Regan J accepted that it was unfortunate to label the residents of Joe Slovo unlawful occupiers, but pointed out that doing so brought them under the protective umbrella of PIE, which provides them with significant protection.
171 Ibid. paras 142–8 (Moseneke DCJ); paras 341–52 (Sachs J).
172 Ibi., paras 149–56 (Moseneke DCJ); paras 274–8 (O’Regan J); paras 353–8 (Sachs J).
173 Following the example of Sachs J in Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC) paras 8–13, Ngcobo J reviews the historical background of the housing crisis in Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) paras 191–8.
174 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) paras 178–233.
175 Ibid. paras 211, 214.
176 Ibid. para. 217. In para. 218 Ngcobo J added that asking whether homeless people were unlawful occupiers was ‘inimical to the foundational values of human dignity as evidenced by the provisions of ss 26 and 25 of the Constitution’ and that it ‘would be more consonant with human dignity of landless people’ to approach the matter as described above.
177 Ibid. para. 331.
178 Ibid. para. 333.
179 Ibid. paras 335–8; Government of the Republic of SA and ors ν Grootboom and ors 2001 (1) SA 46 (CC); Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC); Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg ν City of Johannesburg and ors 2008 (3) SA 208 (CC).
180 Residents of Joe Slovo Community, Western Cape ν Thubelisha Homes and ors (Centre on Housing Rights and Evictions and Community Law Centre, University of the Western Cape, amici curiae) [2009] JOL 23711 (CC) para. 339.
181 Ibid. para. 344.
182 Ibid. para. 344
183 Ibid. para. 343.
184 Ibid. para. 351. In paras 287–89 O’Regan J agreed that the private-law principles that apply to prior notice in cases of precarium cannot apply unchanged in this case, since the landowner is a state organ with special obligations to provide access to housing, but stated that she nevertheless considered the private-law principles of ownership relevant.
185 Sachs J arguably made the same point when he mentioned this as one of the three distinguishing features of the case: ibid. para. 339.
186 The local authority did not participate in the eviction in Residents of Joe Slovo Community, but the provincial and national authorities did.
187 It was not entirely clear from the facts that redevelopment was the ultimate aim in Port Elizabeth Municipality ν Various Occupiers 2005 (1) SA 217 (CC), but one can safely assume that the squatters were preventing the private owners from developing their land economically.
188 S 26(1)-(2) of the 1996 Constitution: ‘(1) Everyone has the right to have access to adequate housing. (2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.’
189 (App no 8795/79) [1986] 8 EHRR 123.
190 Hawaii Housing Authority ν Midkiff 467 US 229 (1984).
191 See the evaluation at text to nn. 92–6 above.