LU2c — Constitutional Developments in Property Law
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The Constitutional Shift
The enactment of the Constitution in 1996 fundamentally changed property law. The common law, customary law, and legislation must all now be:
- - Interpreted in line with constitutional values
- - Applied in a way that takes the Bill of Rights into account
- - Developed where they fall short of constitutional requirements (ss 39(2) and 173)
The traditional Roman-Dutch approach — protecting the rights of existing owners — is no longer sufficient on its own.
Section 25 — The Property Clause
Section 25 creates a tension between protecting existing property rights and enabling transformation:
| s 25 protects | s 25 also enables |
|---|---|
| Existing ownership — no arbitrary deprivation of property | Expropriation for public purposes, subject to compensation |
| Property rights of current owners | Land reform — redistribution of land |
Legislation flowing from s 25
- - Upgrading of Land Tenure Rights Act 112 of 1991 — upgrades informal tenure rights to full ownership
- - Extension of Security of Tenure Act (ESTA) 62 of 1997 — protects people living on another's land with consent
Issues regarding access to land are among the greatest legacies of colonialism and apartheid still affecting South African society today.
Section 26 — Right of Access to Housing
Section 26(1): Everyone has the right to have access to adequate housing.
Section 26(3): No one may be evicted from their home, or have their home demolished, without a court order. The court must consider all relevant circumstances.
Why s 26(3) restricts the rei vindicatio
Prof André van der Walt: "Apartheid land law allowed evictions and forced removals that uprooted millions of black South Africans and left them politically, socially and economically marginalised, insecure and vulnerable. The anti-eviction provisions in s 26(3)… were promulgated with the explicit purpose of stopping, and where possible, reversing this process."
The rei vindicatio — the owner's common-law remedy — must now yield in some instances to the constitutional rights of unlawful occupiers.
The PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998)
- - Provides specific procedures for lawful eviction of unlawful occupiers
- - Has both a constitutional agenda (protect dignity and housing rights) and a political agenda (correct historical wrongs)
- - Judges must apply it by keeping in mind why it was enacted
- - Must be applied "within a carefully calibrated constitutional matrix" — considering facts, circumstances, constitutional values, and historical context
⚠️ Eviction is NOT impossible or illegal. But: if eviction will result in homelessness, it cannot proceed without the municipality being joined as a party to arrange alternative accommodation.
Key Cases — Must Know
1. Port Elizabeth Municipality v Various Occupiers (2005)
| Element | Detail |
|---|---|
| Facts | 68 people (23 children) in informal dwellings on privately owned land. Municipality applied for eviction under PIE Act |
| High Court | Granted eviction order — harshly, even ordered occupiers to pay legal costs |
| Constitutional Court | Overturned eviction. Cannot apply s 26(3) or PIE Act without recognising historical context. The "constitutional matrix" must be applied |
| Key principle | Socio-economic rights of occupiers must be considered: "Section 26(3) evinces special constitutional regard for a person's place of abode… a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security." |
2. Occupiers of 51 Olivia Road v City of Johannesburg (2017)
| Element | Detail |
|---|---|
| Facts | 184 unlawful occupiers (some for 26 years) in a Berea high-rise. New owner (Maseko) wanted to upgrade and lease. Occupiers sent ward committee member to represent them — they unknowingly "consented" to eviction |
| High Court | Granted eviction order based on supposed consent |
| Constitutional Court | Overturned — consent must be informed. Uninformed consent is not valid consent |
| Key principle | Availability of alternative accommodation must always be considered. Cannot evict people into homelessness. The City of Johannesburg must be joined as a party in such cases |
3. Baron and Others v Claytile (Pty) Ltd (2017)
| Element | Detail |
|---|---|
| Facts | Owner applied for eviction under ESTA. Occupiers had been on the land. Lower courts granted eviction; Land Claims Court and Constitutional Court confirmed it |
| Outcome | Eviction order upheld — an example of a lawful, valid eviction |
| Key principle | Eviction is not impossible. When proper procedures are followed and circumstances are properly considered, a court may and must grant the order |
The Balance — What Courts Must Do
Owner's right (rei vindicatio)
vs
Occupier's right (s 26 + PIE Act)
Court must weigh:
- History of the occupation
- Duration of occupation
- Number of occupiers (especially children)
- Willingness to move given notice
- Availability of alternative accommodation
- Municipality's obligationsImportant: Owners STILL have the right to evict unlawful occupiers. The law does not abolish the rei vindicatio. It requires that it be exercised justly, considering all circumstances.
Conclusion — The Transformative Project in Property Law
The law of property has undergone significant constitutional development:
- - Slaves → legal subjects → equal before the law
- - The rei vindicatio is limited where eviction would cause homelessness
- - Land reform legislation addresses historical dispossession
- - Courts must apply common-law remedies in ways that serve all South Africans, not just existing owners
"Human beings have gone from being property, to being equal before the law, with the rights of the most vulnerable in our community being the most cherished of all." — Study guide
Self-Assessment Questions
- - Discuss the impact of s 26(3) on the rei vindicatio.
- - What is the PIE Act and what is its purpose?
- - Discuss the PE Municipality case. Did the High Court act constitutionally?
- - What was the significance of the Olivia Road case regarding consent?
- - Can an eviction order ever be granted? Discuss with reference to Baron v Claytile.
- - Can the Constitution be used to protect the various rights and claims to immovable property in South Africa? Discuss in detail.