Maastricht Private Law Lecture 2025

Unlawful occupation of land, or squatting, is a global phenomenon. The underlying reasons for and worldwide responses to the problem vary, and every jurisdiction has its own particular way of dealing with the issue very often opting for different branches of the law to regulate the matter. Some opt for private law civil remedies to provide answers. Others, for instance, turn to criminal law to resolve the issue. Treating unlawful occupation of land as a purely private matter between a landowner and a trespasser often ignores the broader systemic, social and political origins of unlawful occupation and implications of evictions.

At the turn to democracy, South Africa chose to decriminalise unlawful occupation of land and to regulate evictions within the public law realm. In this lecture, I use recent trends in eviction jurisprudence in South Africa to argue that the continued reliance on private law (rules and remedies), runs the very real risk that many of the gains achieved in undoing the traditional hierarchical power or dominance of landowners is undone. The inclination towards private law rules and remedies in the eviction context arguably stems from an underlying desire to keep existing private property rights in place and is, in many respects, counter transformative. It also poses consequences for the democratic process from a systemic point of view. That is not to say that resort to civil law remedies in this context is impossible or unfavourable in all cases, in fact the South African Constitution (and the specific legislation) does not always prohibit it outright. However, it is important to have an honest conversation about why these questions matter and what is at stake when locating unlawful occupation and evictions in private law.