Resistance to reform property: A ‘resilient property’ perspective

Abstract

A wicked problem is identified in South African property law as the inaccessibility of secure land/housing rights for the vulnerable. This problem is contextualised as largely unsolvable when working with reductionist frames, after which the core and extent of the problem is unpacked with reference to two interconnecting regimes, that of land reform and housing. Various aspects of the problem are alluded to in both regimes, not to solve the problem, or aspects thereof, but to focus on underlying forms of state resistance; that is, large-scale governmental resistance to conform to constitutional directives. Such resistance is unpacked by relying on ‘resilient property’, as recently developed by Lorna Fox O’Mahony and Marc Roark, which offers a novel, insightful account of the role of the state’s own need for resilience in determining state responses to complex property problems. Two preliminary signs of resistance – property as sovereignty and economic policy choices – are further analysed to ‘rationalise’ misdirected policy choices, incoherence between policies and laws and what the courts have described as absurd bureaucratic decision-making.