Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town

8 Pages Posted: 9 Dec 2020

See all articles by Gaurav Mukherjee

Gaurav Mukherjee

Central European University (CEU); University of Melbourne - Asian Law Centre

Date Written: December 8, 2020

Abstract

In this article, I comment on the judicial responses to several incidents of eviction and demolition of illegal structures during the COVID-19 lockdown by Cape Town City officials, including members of the Anti Land Invasion Unit. The cases implicate complex legal questions, many of which are heavily contingent on factual situations: first, whether it was permissible for City Officials to conduct evictions and demolitions when they had been specifically disallowed by section 36(1) of Alert Level 3 Regulations; second, whether the protections afforded by the PIE Act extends to structures which may not be fully completed nor occupied; third, the relationship between the common law remedy of counter-spoliation and its applicability to situations of land invasion where housing rights and judicially supervised eviction and demolitions are concerned, and fourth, the constitutionality of the manner of determination of whether a structure is built or occupied – the response to which determines whether the provisions of the PIE Act kick in. Finally, I also comment on the accountability of private actors tendered to carry out evictions and demolitions – which may create perverse incentives to maximize their numbers, with little regard for constitutional safeguards.

Keywords: evictions, housing rights, socioeconomic rights, Constitution of South Africa

Suggested Citation

Mukherjee, Gaurav, Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town (December 8, 2020). Available at SSRN: https://ssrn.com/abstract=3744891 or http://dx.doi.org/10.2139/ssrn.3744891

Gaurav Mukherjee (Contact Author)

Central European University (CEU) ( email )

Nádor u. 9
Budapest, 1051
Hungary

HOME PAGE: http://https://legal.ceu.edu/people/gaurav-mukherjee

University of Melbourne - Asian Law Centre ( email )

Melbourne
Australia

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