Is land invasion an African problem?

Land invasion refers to the unlawful occupation of land, or any settlement or occupation of people on land without the express or tacit consent of the owner of the land or the person in charge of the land, or even the State.

Such an invasion may be done by a single person or a group of individuals on public or on privately-owned land. In the South African context; the most common cases are invasions by a group of people.

Land invasions in Africa are deeply tied to the continent's complex history. The economic fall-out from the COVID-19 pandemic, combined with existing housing shortages, contributed to a rise in land invasions. With more people migrating to cities in search of jobs and better living conditions, the trend of land invasions is likely to continue growing, especially in rapidly urbanising countries like Nigeria, Kenya and South Africa.

What are the drivers of land invasions?

Urbanisation: Africa is the fastest urbanising continent. It is estimated that by 2050 Africa’s urban population is expected to double, reaching 1.5 billion people.

In South Africa, between 2019 and 2020, land invasions in the Western Cape province had increased by over 80 percent. According to the City of Cape Town, in 2020, there were over 1,200 land invasion incidents across the city, involving more than 40,000 illegal structures having been erected, which was driven by economic hardship and a housing backlog.

Land invasions are common in Nairobi as people seek shelter. In 2023, about 60 percent of Nairobi’s population lived in informal settlements, many of which started as a land invasion. Kibera, an informal settlement, in Nairobi arose from such an invasion.

Land invasions affect agriculture, investment and overall economic growth. Not to mention the social unrest and displacement of communities. Poverty, unemployment and government failures in land redistribution are the main factors behind land invasions.

The impact of land invasions

Land invasions can deter both domestic and foreign investment. Investors are wary about putting money into land or property development due to the threat of land invasions and the apparent lack of government control.

Land invasions quite often lead to violent confrontations between the land invaders, the landowners and government. For example, in a very recent matter the land invaders, in the South-West area of Johannesburg, against direct instructions of authorities, such as police, continued to cut through fences in the early hours of the morning, and commenced invading units that were designated for deserving occupants. The landowners, through great costs and effort, and after lengthy processes of litigation were able to regain possession. Unfortunately, not all landowners are able to afford such court processes. The unlawful land invaders are normally well organised and, in most instances, politically inspired to focus on self-interest.

The most famous example of land invasions undermining agricultural productivity occurred during the early 2000s when the Zimbabwean Government sanctioned the seizure of white-owned commercial farms. This led to over 4,000 farms being occupied, displacing both the landowners and workers and to a dramatic collapse in agricultural output. Before the invasions, Zimbabwe was a significant exporter of agricultural products, particularly tobacco and maize, but by 2008, agricultural production had fallen by more than 50 percent, a massive contributing factor to the current Zimbabwean economic crisis.

International organisations like Amnesty International have raised concerns about the treatment of people that engage in land invasions, particularly regarding the forced evictions and the lack of alternative housing options. In Nairobi, the Government has occasionally responded with force to remove illegal settlements, and this has led to public outcry and complaints of human rights violations, which has put the Kenyan Government under scrutiny.

Remedies

There should be a distinction drawn between trespassing, which is the unlawful disturbance of possession, and spoliation, which is the unlawful deprivation of possession.

The Mandament van Spolie may be used to reinstate possession of land where it has been lost. Depending on the circumstances, the landowner may approach and ask the court to grant a declaratory order, a prohibitory order or a mandatory interdict and may even request damages in delict.

Where land has not been invaded yet, but only trespassing has occurred, the landowner may lodge a complaint with the South African Police Service in terms of the Trespass Act 6 of 1959. The landowner can request law enforcement to remove such persons. Normally interdictory relief is sought in courts whilst the threat to invasion is not yet completed.

Where land has been invaded by an unlawful occupier, the landowner may not remove the occupiers or their structures without a court order. The 24-hour myth is just that, a myth. The landowner is required to approach the court for an eviction order and the court will only grant an order for eviction if, in its discretion, it is just and equitable to do so. The court may further order the demolition and removal of buildings or structures that were occupied by the persons concerned.

In South Africa, land invasions and the damage they can cause to property are serious concerns. If unlawful occupiers cause damage to structures on the property, the landowner may claim restitution through civil litigation. If the invasion involves criminal acts, for example vandalism, theft or arson, the offenders may also face criminal charges. Whilst not legal, a landowner could take preventative measures such as installing fences, employing security or other deterrents to protect their property from invasion.

Landowners may face difficulty in pursuing a civil claim for damages against unidentified land invaders; however, a landowner could consider pursuing a claim against the local municipality, should the land invasion have occurred due to the negligence or failure on their part to prevent or control illegal occupations.

In South Africa, the eviction procedure requires the balancing of both the Right to Property and the Right to Housing as enshrined in the Constitution of the Republic of South Africa Act 108 of 1996. Recent court rulings have emphasised the need for a balanced approach.

Balancing land ownership rights with the right to housing as a significant challenge

Land invasion, particularly in the African context, touches on historical, social, political and economic aspects. Balancing land ownership rights with the right to housing requires a multifaceted approach that takes economic, social and legal factors into consideration. It is essential to protect private property. Potential solutions to finding a balance of the two rights are to:

• Recognise and respect the legal ownership of land and protect those who hold land titles under the law.
• Develop and strengthen laws that clearly define land ownership, usage rights and the right to housing.
• Implement fair and transparent land reform programs that redistribute land to those who need it, without undermining the rights of current landowners.
• Support the development of affordable housing options for low-income citizens, especially in urban areas where land is scarce.
• Public-private partnership between government and developers to create housing solutions that do not require the invasion of privately-owned land.
• Involve communities in decision-making processes regarding land and housing and establish mechanisms for resolving land disputes through dialogue, finding mutually beneficial solutions.
• Ensure that land reform and housing policies do not undermine agricultural productivity by encouraging mixed land use in both urban and rural settings, where residential, commercial and agricultural activities can co-exist.
• Work more closely with neighbouring countries to address cross-border issues related to land and housing, such as migration and refugee housing needs.

South African Government response

The Government has implemented several measures to prevent and control land invasions, such as the Prevention of Illegal Eviction from and Unlawful Occupation of Land  Act 19 of 1998 and the Extension of Security of Tenure Act 62 of 1997.

As a preventative measure, some municipalities have designed anti-land invasion policies and some have appointed dedicated anti-invasion units. However, the enforcement thereof is inconsistent and land invasions continue to be on the rise.

Conclusion

Land invasion in Africa is a complex challenge, deeply rooted in historical imbalance and worsened by modern challenges like hardship, unemployment, poverty, economic instability and urbanisation.

The increase in land invasions reflects ongoing social and economic pressures, making it a critical issue that requires immediate and long-term solutions. The truth is, when people’s basic needs are met, they are less likely to resort to illegal land invasions.

Authored by Ansie Menezes and Sive Makhulathi.