Balancing justice and ownership: The Precast Community's fight for housing rights in Johannesburg

The concept of justice is associated with the sanctity of private ownership in most modern societies. John Locke said that the right to life, liberty and estate was an evident attribute of the individual in the state of nature. On the other end of the spectrum, Jean Jacques Rousseau proposed that private ownership is the regrettable cause of inequality and concomitant evils. Perhaps the truth lies somewhere in the muddy JoJo tanks in between. 

While there has recently been much panic regarding the incoming Expropriation Act and the pending doom for private property, closer to home, those who have been working in the land reform space will attest to the fact that convincing the government to expropriate land is an arduous task, even where the circumstances are ripe for expropriation. 

The Legal Resources Centre currently represents a community living in an informal settlement south of Johannesburg known as “the Precast Community”. The history of the occupation dates back to the 1940’s when people began occupying the land with the permission of the then owner, who was a brick manufacturer. Some occupiers have lived on the property for more than 60 years and have ancestors buried on it. The area provides easy access to transport hubs, healthcare and schooling.  

The two portions of vacant land on which the Precast Settlement is established, belong to two separate landowners — a private company and an individual. 

Mixed housing complex

Over a span of seven years, the private company had engaged the City of Johannesburg and the Department of Human Settlements with a view to develop the land for a mixed housing complex. Adverts were placed in the community depicting flats and mixed-use housing. 

It was never clarified, however, where the community currently living on the land would stand in the anticipated development. After multiple discussions, environmental assessments and efforts to advance the housing development, the City retracted earlier undertakings to support the development. This resulted in the company abandoning the proposal. 

The community has organised itself in support of development of the property as far back as 2008. The community sought recognition by the City for basic services and security of tenure. Despite repeated engagements and public promises made by the City to provide services, they never arrived. Water is only supplied through five JoJo tanks that are intermittently filled, which service 2,000 people. 

In May 2024 the company brought a court application asking the court to order the eviction of the occupiers, or alternatively, requesting that the City of Johannesburg be ordered to expropriate the property. The Precast Community are opposing the application on the basis that it would not be just and equitable for the eviction to be granted as it would result in instantaneous mass homelessness for mostly indigent and marginalised people. 

On 19 June 2025 the community were in court to ask for the joinder of the individual landowner for the adjacent property on which the community lives to be joined in the case, and also for leave to bring a counter-application. The individual owner appeared in court and represented himself, describing his plight with the municipality over several decades regarding his situation. He eventually agreed to join the ongoing case, which may provide him with an opportunity to air his issues with the oversight of the court process. 

Protecting the landowner’s rights

The counter-application seeks to address a way of protecting the landowner’s rights under section 25 of the Constitution as well those of the occupiers under section 26; and to ensure that the City complies with its constitutional and statutory obligations toward the Precast Community. 

In respect of local government’s duties, section 9(1) of the Housing Act provides that “every municipality must, as part of the municipality’s process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to ensure that the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis and to identify and designate land for housing development”. The Housing Act further provides that a municipality may expropriate land required by it for the purposes of a housing development in terms of any national housing policy, if it is unable to purchase the land on reasonable terms with the owner. 

There are various national housing programmes within the National Housing Code which the City may utilise for the purpose of discharging its obligations under section 26 of the Constitution, including the Upgrading of Informal Settlements Programme, the Social Housing Policy and the Emergency Housing Programme. What the City may not do, is fail to take any decision. 

The community is ultimately seeking relief that directs the City to take steps in terms of section 9(1) of the Housing Act to ensure that the residents of the Precast Community have access to adequate housing, including by selecting a suitable housing programme for the Precast Community, and directing the City of Johannesburg and the property owners to enter into good faith negotiations for purposes of purchasing the property with a view to carrying out a national housing programme at the property. Alternatively, directing that the City of Johannesburg consider the expropriation of the property in terms of section 9(3) of the Housing Act. 

The City and the private company did not oppose the application for leave to institute the counter-application, and the community now awaits answering court papers from the City. 

Professor Andre van der Walt has argued that traditional norms of property do not suffice in transformational contexts. Expropriation may be a justifiable and indeed welcome legal avenue where the rights of all interested parties are balanced and respected.  DM

Ektaa Deochand is an attorney at the Legal Resources Centre