VAN DER WESTHUIZEN J
property,33 but also addresses the need to redress the grossly unequal social
conditions.34 Section 26 highlights the transformative vision of the Constitution.35
[36] PIE was adopted with the manifest objective of overcoming past abuses like the
displacement and relocation of people. It acknowledges their quest for homes, while
recognising that no one may be deprived arbitrarily of property. The preamble quotes
sections 25(1) and 26(3) of the Constitution.36 In PE Municipality it was stated that
the court is required ―to balance out and reconcile the opposed claims in as just a
manner as possible, taking account of all of the interests involved and the specific
factors relevant in each particular case.‖37
[37] Unlawful occupation results in a deprivation of property under section 25(1).
Deprivation might however pass constitutional muster by virtue of being mandated by
law of general application and if not arbitrary.38 Therefore PIE allows for eviction of
unlawful occupiers only when it is just and equitable.
33
Section 25(1).
34
Section 25(4)-(9).
35
PE Municipality above n 12 at para 17.
36
The preamble of PIE provides in relevant part:
―WHEREAS no one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property;
AND WHEREAS 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‖.
37
PE Municipality above n 12 at para 23.
38
See Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC)
(Harksen) where the distinction was drawn between deprivations (under section 25(1)) and expropriations (as
per the rest of section 25). Although the precise relationship between the two was not stated, this Court made
observations about their differing attributes. Goldstone J articulated that ―[t]he word ‗expropriate‘ is generally
used in our law to describe the process whereby a public authority takes property (usually immovable) for a
public purpose and usually against payment of compensation‖ (at para 32). In that case the impugned law did
not amount to a compulsory acquisition or expropriation because the property was not appropriated by the state,
18