Abstract
The unlawful occupation of inner-city buildings in South Africa has led to a number of legal disputes between vulnerable occupiers and individual landowners that highlight the conflict between individuals' constitutional right not to be evicted in an arbitrary manner and property owners' constitutional right not to be deprived of property arbitrarily. The cause of this tension is a shortage of affordable housing options for low-income households in the inner cities, a fact which shows that the state is evidently struggling to give effect to its housing obligation embodied in section 26(1) and (2) of the Constitution. In the majority of cases the courts assume that any interference with private landowners' rights beyond a temporary nature would be unjustifiable, but they do this without undertaking a proper constitutional analysis to determine whether a further limitation of the individual landowner's property rights might be justifiable and non-arbitrary in the circumstances of each case.In general the courts can allow, suspend or refuse the eviction of unlawful occupiers, provided that the order does not amount to an arbitrary deprivation of property. Nevertheless, in some instances the arbitrary deprivation of property is unavoidable, despite the court's best efforts to protect property entitlements. These eviction cases show the limits of the courts' powers both to provide adequate solutions to protect owners' property rights and to give effect to the constitutional housing provision.In the light of three eviction cases, namely Blue Moonlight, Modderklip and Olivia Road, this article explains the role of the court and the local authority, together with the entitlements and social obligations of inner-city landowners within the framework of the property clause, in order to analyse the constitutionality of the courts' decisions and to suggest ways in which the inner-city housing shortage may be addressed more effectively. This article also considers how two foreign jurisdictions, namely England and the Netherlands, have managed the precarious relationship between urban landowners – who often allow buildings to decay and stand vacant – and the homeless. These jurisdictions provide innovative alternatives to the expropriation of the ownership of private inner-city properties for housing purposes. Similar measures, tailored to accommodate the South African constitutional, economic and socio-economic landscape, may be a welcome addition to the existing statutory powers of the local authorities tasked with combatting homelessness in urban areas.
Highlights
The unlawful occupation of inner-city buildings in South Africa has led to a number of legal disputes between vulnerable occupiers and individual landowners – highlighting the direct conflict between individuals' constitutional right not to be evicted in an arbitrary manner and property owners' constitutional right not to be deprived of property arbitrarily.[1]
One of the considerations that favoured eviction orders and the concomitant relocations to temporary public housing was the decision that any deprivation of the landowners' property rights beyond a temporary nature would be unjustifiable.[52]
The courts merely assumed that they had to award the eviction orders for two reasons, namely that the obligation to provide housing to the socio-economically weak rests on the state and that private owners' property entitlements should generally not be limited to a greater extent than is necessary for the state to fulfill its obligations
Summary
Ownership consists of rights and obligations that are shaped according to the prevailing demands of society.[68]. There are instances where – by attempting to abandon their inner-city properties – landowners have shunned all obligations arising from land ownership These cases highlight the unequal distribution of housing resources in South Africa and raise questions concerning the obligations of landowners, who form part of a society in the midst of a housing crisis. As has already been said, the courts have generally opted for suspended eviction orders while holding on to the traditional understanding that landowners' rights should be limited in the least burdensome way This result may be ascribed to the fact that South African courts have the ability to protect constitutional and existing property rights but (with a few exceptions that are not relevant here) they do not have the authority to create rights that did not exist previously.
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