Dispossession and Evictions in Post-Apartheid South Africa

Happiness Village is a small community in Marievale in the East Rand just outside of Johannesburg. The area is a former hot spot for gold mines, and the village was formed when the South African military unlawfully and violently evicted the occupants of the former military barracks in November 2017. The case of Marievale raises questions about the role of land acquisition in a context of historic racially discriminatory laws in South Africa. While current legislation focuses on protecting certain land rights, including informal land rights, the question of how land is acquired has not been sufficiently explored.

Some community members have been “unlawful” occupants of this highly contested land for about 32 years. One, a former tavern owner, is the first respondent of the most recent eviction order from the South African National Defence Force (SANDF). The “unlawfulness” of their occupation makes the residents, including women and children, vulnerable to dispossession and human rights violations, leaving them almost unprotected in the face of evictions.

The residents have experienced several violations of their human rights, including the right to freedom of movement due to military blockades and curfews when the military enclosed the entire community in the form of a dug-up trench with the aim of controlling movement in and out of the area. The women interviewed reported being violently beaten up when they have fallen in the trench in an attempt to move into or out of the area. The Lawyers for Human Rights (LHR) and Marievale lawyer Louise Du Plessis describe the eviction case as one of the worst she has ever witnessed, with torture by the military cited in court documents. Behind the evictions is an attempt to move the unlawful occupants of Happiness Village off the military-owned land. The military claims it needs all accommodations for its active forces and the base cleared of civilians so it can conduct military exercises.

The authors of this article went into Marievale’s Happiness Village and the old military barracks to interview women about their experiences and interactions with the mining company and the municipality. All the interviewees had lived in the old military barracks for more than ten years and experienced the first eviction order in 2017. Now only one of them remains there, while the rest live in the adjacent Happiness Village.

The SANDF’s latest effort is a lawful eviction order and relocation plan to another informal area called Zamani, which has been met with vigorous protest from the community. The interview respondents mostly describe Zamani as a wet area without adequate water and sanitation. One of the women once lived in Zamani and noted that “water runs through the shacks and we don’t want this, we want bricks … we want bricks”. She explained that, due to intimidation, taxi drivers no longer even go to the “former” Marievale military base, so residents do without transport, which makes their lives extremely difficult. Still, she said she would rather live there than “be thrown all the way in Zamani”, where her life would also be threatened by local residents competing for access to government housing.

The refusal to relocate stems from a refusal to move from one shack to another, having previously lived in the old military barracks. It is a question of dignity, not of refusing to relocate. Like others, the court order served in early March 2024 specifies that the corrugated iron structures to be erected for the families in Zamani are not to be extended or amended in any way. For families like that of one of our interviewees — another woman from the Eastern Cape who has eight children — living in a one-room shack is neither practical nor dignified.

But more important for the purposes of this article, the community is located near the Ilangabi mine. Amidst evictions by the state, the community strongly suspected that the goal was to expand the mine. In September 2023, the local newspaper published a notice of consultation for an application for coal and clay prospecting rights, a mining permit, and environmental authorization under the 2002 Mineral Petroleum Resources Development Act (MPRDA) and the 2008 National Environmental Management Act (NEMA) for the Ilangabi mine. The mine is expanding into the south-eastern part of Marievale, and Happiness Village is located in the north-east. The expansion of the mine means that all “lawful occupiers” of the land must be consulted under the MPRDA. Happiness Village residents and those still occupying the old military barracks, as unlawful occupiers, do not qualify for consultation.

Gaps in Legislation

The Marievale case highlights major concerns about gaps in current mining and land law, known as “brown legislation”. The Interim Protection of Informal Land Rights Act (IPILRA) requires that informal land rights holders be consulted on all decisions affecting the land they occupy, however that only applies to “lawful occupiers”. According to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998, an unlawful occupier is someone considered to be occupying land without the express or tacit consent of the owner (or person in charge) or without a right in law to be in occupation.

Despite being considered unlawful occupiers, the residents of Happiness Village, including the few still in the old Marievale military barracks, qualify for consultation under the NEMA, the green laws. Green laws refer to legislation related to the environment and human rights. When a license is granted, a mining company must conduct an Environmental Impact Assessment (EIA). Any relocations related to green laws require compensation for resettlement from the mining company, which can be a costly and tedious exercise that many companies try to evade.

The issue of land and mineral rights in post-apartheid South Africa remains complex, often leading to conflicts between the state and communities residing in informal or mining areas.

This article aims to expand on the gaps in South Africa’s land law as it relates to mining (brown legislation). It will explore what it would mean if some Marievale barracks residents were to be considered “lawful occupiers” under IPILRA. In addition, it will consider the applicability of NEMA in the case of Happiness Village and argue that it may be in the interest of the mining company for the state, the municipality, and SANDF to continue with the evictions as soon as possible. Doing so would unburden it of NEMA consultations for Happiness Village and those still occupying the military barracks and evade the costs that would be incurred by consulting with “unlawful” occupiers if there are plans to expand the mine in a way that would affect the community.

Land and Mining in Post-Apartheid South Africa

The issue of land and mineral rights in post-apartheid South Africa remains complex, often leading to conflicts between the state and communities residing in informal or mining areas. Land dispossession, often through violent means, is a big part of the colonial and apartheid legacy. This can also be seen in the spatial inequalities that have been imposed both during and after apartheid.

Given the racially discriminatory policies of the colonial and apartheid regimes, Black people experience the legacy of a racialized mining and labour sector, suffering disruption or dislocation when mining takes place on their land. Their vulnerability is exacerbated by a lack of secure land tenure relative to white landowners, who have deeds to prove their rights and resources to negotiate surface leases. South Africa’s racially discriminatory laws have led to widespread insecurity of tenure and informal land rights, for which legal protections have been included for some people. However, the question of how land is acquired is less often considered to determine the status of tenure.

Section 25(6) of the South African Constitution was enacted to provide the right to secure land tenure. A series of laws followed to protect farm workers and dwellers against arbitrary land deprivation and to ensure access to adequate housing. However, those laws protect land tenure outside of townships and only in townships when it is used for agricultural purposes. The main aim of this legislation was to protect the rights of farm dwellers. There is also legislation that protects occupants from unlawful evictions anywhere; for a court to order an unlawful occupier’s eviction, it must first determine whether doing so is just and lawful. The government passed the IPILRA to protect vulnerable people’s land rights, giving them a right to say no to developments that impact their informal land rights. Any appeals from the developer or the government must be taken to court.

Women and Land Tenure in South Africa

Black women encounter intersecting forms of discrimination rooted in gender, race, and class. In the case of women from Happiness Village, their “illegal status” significantly influences their eligibility for protection under land and mining laws. In their communities and in broader society, women face discrimination that amplifies the vulnerability of their land tenure. It is important to situate the women of Happiness Village within the broader context of land rights and contestations and to highlight the influence of underlying power relations in society. Thus, comprehending the present issue requires a panoramic view of a historical context rooted in racial colonial capitalism.

Patriarchy, a Western cultural construct, was absent in pre-colonial Africa, where land was communally owned and gender was insignificant. The state’s promotion of male-led households among white citizens was later transferred to Black households. This imposition of patriarchy, rooted in draconian land laws, aimed to create hierarchies within families, subordinating women to male control. Paradoxically, women played active roles in agricultural activities, yet laws reinforced male dominance.

Black women encounter intersecting forms of discrimination rooted in gender, race, and class.

Under apartheid, Black communities, and women in particular, faced systematic dispossession of their land rights through discriminatory laws and practices, leading to forced proletarianization. Policies like hut taxes compelled Black men to migrate as cheap labour, yet Africa was never completely proletarianized, as subsistence farming continued. Women sustained capitalism through subsistence farming and social reproduction on communally owned land, free of charge. Colonial capitalism entrenched patriarchy, separating production from social reproduction, primarily carried out by women.

Bernhard Leubolt argues that progress in post-apartheid South Africa has been minimal, despite promises of comprehensive housing programmes under the Reconstruction and Development Programme (RDP), leaving many disillusioned, including the residents of Happiness Village.

Unlawful Evictions and Their Impact on Women

The community land in Happiness Village is owned by the SANDF, which has been trying to evict the community since the winter of 2017, when one of the first unlawful evictions of about 100 Marievale families occurred. The women interviewed painted a grim and violent picture of gross human rights violations that night. They say that they were given only three hours to vacate. A woman from Lesotho who had been living there heard of the eviction from her friends. Soldiers served her a letter and, with very little time to assess it, she was told to remove her belongings immediately. She says the most painful part for her was the thought of having to sleep outside with her pregnant daughter.

The SANDF then offered the families alternative accommodations in the form of two bungalows with no privacy or cooking facilities and limited water and sanitation. The High Court found the housing offered to be unconstitutional and unsuitable to accommodate the families.

Left with no choice but to erect corrugated iron shacks a few hundred metres away, Happiness Village was established when the court declared the eviction unlawful and ordered their return. The woman from Lesotho notes that the harassment from soldiers — including through unannounced military exercises — has become even worse since they erected the informal settlement. The residents of Happiness Village have been in and out of court since then, refusing to be relocated to Zamani in Duduza, west of Marievale.

Additionally, in the absence of employment opportunities in the formal mines, the women we spoke to depend on social grants. The former tavern owner retired due to old age. The woman from Lesotho has a small garden in her backyard and works at a shop in the area. None of the women we spoke to have children who work in the mine. Instead, as the sun set during the interviews, we passed about 10–15 young men covered in dust, but without uniforms. The community identified them as “zama zamas”, a commonly-used term for artisanal, small-scale miners in South Africa. That kind of work remains informal here and is heavily criminalized. The seemingly young men mine without health or safety precautions, but in a community considered an “illegal occupation”, with its inhabitants cut off from most employment activities, including the nearby mine, this is what is left. There are also allegations that some military personnel are privately taking a cut from the zama zamas, but the SANDF denies it.

The Marievale residents’ eviction was overturned in court in 2018, but not all of them were able to return to their homes; only about three families could find housing in the old barracks. Judge Davis noted that “under the guise of a training exercise … members of the SANDF conducted what amounted to a forced removal”. He concluded that the “exercise” was a ruse that “sought to achieve the eviction of [the residents] through the back door”. The SANDF appealed the decision but lost.

Under apartheid, Black communities, and women in particular, faced systematic dispossession of their land rights through discriminatory laws and practices, leading to forced proletarianization.

In May 2020, ten families were evicted and residents obtained a temporary court order to stop the evictions. The municipality, the City of Ekhurhleni, said it was not evicting the residents, but rather relocating them to Zamani, although the city’s housing project was two years from completion — possibly heightening tensions between new and old residents over access to housing. In 2021, the SANDF obtained a final eviction notice and in 2022, the community waited for the Department of Human Settlements and the SANDF to submit a relocation plan. In July 2022, the army shot flares, rifles, and other firearms around Happiness Village. None of the residents were given any prior notice.

Upon visiting Marievale to conduct interviews in March 2024, we were surprised to hear about the latest High Court “emergency eviction” order with a 30 June 2024 deadline. The SANDF aims to finish relocating those who refuse to move by December 2024. One of the women interviewed described the timing of this eviction as unsurprising. She said the SANDF had attempted to evict them almost three times since 2017, noting that “it’s almost like the municipality and the army want to have them intentionally suffer during the colder seasons” now that the latest eviction order is set for June as well. As the soldiers return from work without uniform (as instructed by a previous court order the community obtained against the SANDF), the culture of fear is palpable.Top of Form

Applying Green Laws: Collusion between the State and the Mining Company?

The community is also located in front of a gold mining tailing that has been earmarked by Ergo Mining for a reclamation project. An Environmental Impact Assessment (EIA) report published in 2020 by Kongiwe Environmental was conducted on behalf of Ergo Mining for a potential gold reclamation project. The report notes that residents of Happiness Village are a “vulnerable population” within the project area, “since they are generally economically disadvantaged, thus their resilience to the unhealthy environment they are often exposed to is very low”.

As such, another EIA conducted by Ilangabi mine, which is located even closer to Happiness Village than Ergo’s tailings, would come to the same conclusion: that the community is vulnerable to environmental impacts. Under the green laws, the mining company would then be required to consult with the community, even though they are unlawful occupiers of the land.

Of the women interviewed, including the former tavern owner who had been living there for 32 years, none of them noted any consultations with the mine since its inception, which may violate the mining company’s legal requirement to continuously consult throughout the lifecycle of the mine. In addition, none of the interviewees were aware of the most recent notice published in the local newspaper about the mine’s expansion. This indicates that the company has generally not complied with the green laws.

Furthermore, under the green laws, this would require Happiness Village to be resettled, which would be an additional cost to the company if the residents were considered lawful occupiers. A report by the Land and Accountability Research Centre notes that, “in South Africa, the struggle for just and equitable compensation prior to mining-induced resettlement is a source of major social unrest in mining-affected areas”. In addition, land valuations in preparation for resettlement by mining companies tend to underestimate, relying only on market value, and do not consider other relevant factors, such as dependence on the land for livelihood, such as grazing and subsistence farming. These valuations perpetuate community impoverishment and have been contested by various communities, making the resettlement process by mining companies a potentially expensive exercise when relevant factors are included.

For example, in the case of Tendele Coal’s operations in Somkhele Kwazulu Natal, the projected profits would not have been the same if compensation for land were factored in prior to the mining process. Avoiding resettlement costs is therefore a major consideration for any viable mining operation. Near Happiness Village is a river stream called the Blesboksrpuit. The river contains some fish and, while no one we spoke to made a connection to fishing activities, this could be one of the factors to consider for relocation when determining the value of the land. Additionally, behind the stream is a bird sanctuary, a protected area and source of employment for those in surrounding areas even though Happiness Village residents are mostly excluded from these sources of livelihood due to their unlawful status. However, a resettlement plan, as it currently stands, driven by the military, focuses on the unlawfulness of the occupiers and excludes many critical questions including how occupancy of the land was acquired in the first place.

Gaps in Brown Laws: Protection of “Beneficial Occupiers” under IPILRA

In a 2018 Constitutional Court ruling in the case of Maledu v Itereleng, the court clarified that informal land rights holders have the right to say no to mining. In this case, it stipulated that mining law must be read concurrently with IPILRA (Section 11(1) of the MPRDA, which regulates mining rights). In practical terms, this means that obtaining mining rights does not automatically allow mining companies to dispossess communities of their land by bypassing informal land rights holders, especially on customary land. This ground-breaking judgment underscored that informal land rights holders have the “right to say no” on issues directly affecting their land and that companies cannot rely only on traditional leaders,[1] as they have for consultation on mining issues. However, the issue with informal rights is that they are not easy to determine and may be contested. The question of beneficial occupation is one such example.

Given the racially discriminatory policies of the colonial and apartheid regimes, Black people experience the legacy of a racialized mining and labour sector, suffering disruption or dislocation when mining takes place on their land.

The free, prior, and informed consent (FPIC) principle is crucial for upholding self-determination rights and is implied in the IPILRA. Under FPIC, communities are entitled to demand adequate information, consultation, and consent before granting social licences. Essentially, communities should be fully aware of potential risks, including social, cultural, economic, and environmental impacts. Moreover, the consultation process must not involve manipulation or coercion. The right to withdraw consent and assert the “right to say no” basically calls for transparency and mandatory information disclosure.

Women, categorized as historically disadvantaged individuals (HDIs), have the right to consent to development projects affecting them. Nonetheless, the WoMin Collective notes the prevailing deeply unequal power structures determining the right of consent. Poor women face triple exclusion based on gender, race, and class, thus inhibiting their voice and influence in community decision-making, as in the case of Marievale.

Requirements for Beneficial Occupation Under the IPILRA

This article considers whether some of the residents living in the old military barracks and in Happiness Village can be regarded as beneficial occupiers under the IPILRA. The Constitutional Court recently considered what constitutes a “lawful occupier” in Grobler v Philips and others. This matter concerns the eviction of Clara Philips from her home in the Western Cape. However, LHR has requested a variation of the judgement, a change to part of the ruling.

The matter is worth challenging, as it exposes gaps in the legislation as to the meaning of “lawful occupiers” of land in a country that had institutionalized racism and discriminatory land law as well as the different ways in which land could have been acquired post-apartheid. At the heart of the variation is the question of whether Mrs Phillips should be considered an unlawful occupier, given racially discriminatory laws concerning land acquisition under apartheid, her age, occupancy amounting to about 70 years, her vulnerability as a female-headed household, and whether it would be just and equitable to evict her. In addition, there are questions about land rezoning, which were out of her control.

Allison Geduld argues that the judgment in Grobler v Philips and others did not consider the perspective of the occupier, given lifelong occupation rights by the first owner, and highlights that the personal contexts of people living and working on farms need to be given adequate consideration. In addition, as the most recent Land Commission report notes, section 39 of the Constitution promotes dignity, equality, and freedom in interpreting property rights, and requires the status of unlawful land occupiers to be considered. Geduld further argues that there is a strong link between Mrs. Philips’s dignity and her relocation, despite the offer for alternative accommodation. Moreover, she contends that, within a neoliberal land regime, privatization, austerity, and deregulation are also important considerations for protecting land tenure. Thus, the court must consider whether protection for Mrs. Philips should be protected under the IPILRA.

The IPILRA recognizes several kinds of informal and customary land rights, including the rights of anyone who has continuously lived on the same piece of land, anywhere in South Africa, since the beginning of 1993 as if they were the owner of the land. These people are called “beneficial occupiers”.

To qualify as a beneficial occupier under the IPILRA, certain requirements must be met.[2] Defending Mrs Philips, the LHR argued in the variation that she reasonably “occupied the property as if she was the owner of the right to occupy, without force and openly, and without the ‘permission’ of the relevant owners”, thus potentially qualifying as a beneficial occupier under the IPILRA.[3]

Some of the interview respondents described their entry into the Marievale military base as without force. Specifically, the former tavern owner describes it first as a renter and “landlord” situation, paying rent to an agent facilitating occupation of the bunkers and assisting with any drain blockages that occurred. Who the agent is and in what capacity the bunkers were rented out is unclear. It can however, be inferred that the permission to occupy the bunkers did not come from SANDF, the owner of the property. Furthermore, she noted that most of the soldiers had evacuated the area, noting that one of the generals had even described the area as “out of bounds” for soldiers and no longer part of the military base. She also relayed that one of the military generals asked her to stop selling to the soldiers because they were no longer permitted in the area. She remains in her house despite the many evictions.

We call for a careful consideration of personal contexts in the acquisition of land from unlawful occupiers to protect their dignity, especially in light of South Africa’s history of racially discriminatory apartheid laws.

Therefore, we contend that the circumstances of settling in the old military barracks in the first place need further consideration, as in the Grobler v Philips case sought by LHR. This should amplify the narrative under which the land was acquired, a very important consideration for a country with a history of racial discrimination and disenfranchisement of women.

While the court considers issues pertaining to South Africa’s brown laws, Happiness Village residents are to relocate into shacks by 30 June 2024, moving from one informal settlement to another in the dead of winter. Moreover, while the court’s rulings may not apply to any of the Happiness Village and Marievale military base residents, the case is likely to be significant insofar as it clarifies a major gap in South Africa’s land laws, which may have a major impact on mining projects and affected communities with informal land rights and unlawful status.

But the former tavern owner, who has lived there for almost 32 years, raises the question: what about her dignity if she were to be moved from her house into a shack in Zamani in her old age?

Contradictions in the Brown Laws and Gender Disparities after 30 Years of Democracy

Similar to Grobler, unlawful evictions in Marievale underscore the enduring legacies of racial colonialism, affecting land tenure in the post-apartheid era, including in urban contexts. While both men and women in Happiness Village face disenfranchisement, women are vulnerable due to class and gender disparities.

Ambiguity as to how the land was acquired and how the Marievale residents came to occupy the old barracks raises questions about women’s agency and vulnerability. While the green laws protect “illegal occupiers”, as in the case of Happiness Village, the lacunas in the brown laws inappropriately disenfranchise many residents, especially those who have been there for more than 30 years, and particularly women.

In addition, the alliance between the state and the mining company, a common alliance in the mining sector, brings into question whether the SANDF’s intentions are honest. This is especially true when mining companies incur resettlement costs, should the occupiers of Happiness Village be identified as vulnerable under the green laws.

Furthermore, the gaps in the brown laws exacerbate gender disparities in land tenure, as the prerogative to centre gender in land rights is overshadowed by the legal status on the occupied land. Such contradictions preclude the enjoyment of social, economic, and human rights granted by an avalanche of laws promulgated in 30 years of democratic dispensation to redress the imbalances of the past. We call for a careful consideration of personal contexts in the acquisition of land from unlawful occupiers to protect their dignity, especially in light of South Africa’s history of racially discriminatory apartheid laws.

Acknowledgments to Sandile Nombeni and Louise Du Plessis and all the women who contributed to this study.