AbstractsLaw & Legal Studies

Assessing the Impact of Section 26 of the Constitution, 1996 on Evictions and Ownership Rights in South Africa

by Gaopalelwe Lesley Mathiba

Institution: North-West University
Department: Faculty of Law
Degree: Bachelor's Degree
Year: 2018
Keywords: Forced Evictions; Just and Equitable; Homelessness; Housing Rights; Property Rights
Posted: 11/03/2018
Record ID: 2222158
Full text PDF: https://www.academia.edu/37696958/Assessing_the_Impact_of_Section_26_of_the_Constitution_1996_on_Evictions_and_Ownership_Rights_in_South_Africa


In this study, the researcher demystifies the stark conflict that exists between two constitutional rights, namely; the right to property (section 25) and the right of access to adequate housing (section 26). The conflict stems mainly from the apartheid system where forced and illegal evictions were so rampant and normatively institutionalised. However, with the advent of democracy, a great deal of transformative commitment ensued. Be that as it may, this mini-dissertation argues that an alarming number of reported illegal evictions in South Africa is so severe to an extent that it thwart and poses a serious threat towards a smooth course of transformation, let alone constitutional democracy. In essence, the conflict comes into fore in the following sense. On the one hand, section 25 guarantees everyone a right to property, which further entails that no one shall arbitrarily be deprived of ownership rights over a certain object/property rightfully belonging to him/her. In other words, the rightful owner of a property is protected from an unlawful interference with his/her ownership rights by either a third party (in this context, an illegal occupant) or the state. On the other, section 26 affords everyone a right of access to adequate housing, which seeks to guard against homelessness and possibly degradation of human dignity. In practice, these two rights are often invoked simultaneously in eviction cases, where the owner of the unlawfully occupied property would rely on section 25, whilst the illegal occupant facing eviction order would rely on section 26. This study will further traverse legal theories with the roots from common law, legislation, judicial decisions and international instruments which have either direct or indirect effect on South African eviction legal framework. The study seeks, with an aid of the aforesaid instruments, to devise effective mechanisms that can be adopted in a quest to address the established conflict. To that end, the researcher holds a stubborn view that the right of access to adequate housing must always override ownership right, given the historical account, social and political realities associated with the former. Lastly, the study suggests, among others, the adoption of the subsidiarity principle when interpreting eviction laws as a short term recommendation, to be followed by the enactment of necessary laws that will enhance the proper enforcement and compliance, as a long term recommendation.