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n South African Law Journal - PIE in the sky : where is the constitutional framework in high court eviction proceedings? Marlboro Crisis Committee & others v City of Johannesburg : notes
Magistrates and high court judges are often at the coalface of legal decisionmaking in a manner that appellate courts are not. On a day-to-day basis, they are tasked with applying the law to situations that address the harsh realities faced by many citizens. Nowhere is this more evident than in the case of eviction applications, where judicial officers are faced with the complex question of balancing the property rights of owners with the housing rights of occupiers.
The advent of constitutional democracy has led to significant legal changes in this area. Section 26(3) of the Constitution of the Republic of South Africa, 1996 expressly states: 'No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.'
To give concrete effect to this section of the Constitution, the legislature passed the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE'). This legislation created both procedural and substantive requirements that have to be met when the eviction of unlawful occupiers is being considered. A series of Constitutional Court judgments have elaborated upon the protections afforded by the Constitution and PIE.
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