BALANCING THE RIGHT TO PEACEFUL USE AND ENJOYMENT OF PRIVATE PROPERTY WITH THE RIGHT OF ACCESS TO ADEQUATE HOUSING AND THE GOVERNMENT’S LEGITIMATE INTEREST THERETO. University of KwaZulu-Natal College of Law and Management Studies School of Law Thesis presented in fulfilment of the requirements for the degree of Master of Laws at the University of KwaZulu-Natal Student: SITHELO MAGAGULA (214503954) MASTER OF LAWS Supervisor: DR MAROPENG MPYA 2019/20 DECLARATION REGARDING ORIGINALITY I, MAGUGULA SITHELO declare that: A. The research reported in this thesis, except where otherwise indicated, is my original research. B. This thesis has not been submitted for any degree or examination at any other university. C. This thesis does not contain other persons’ data, pictures, graphs or other information, unless specifically acknowledged as being sourced from other persons. D. This thesis does not contain other persons’ writing, unless specifically acknowledged as being sourced from other researchers. Where other written sources have been quoted, then: E. their words have been re-written, but the general information attributed to them has been referenced; F. where their exact words have been used, their writing has been placed inside quotation marks, and referenced. G. Where I have reproduced a publication of which I am an author, co-author or editor, I have indicated in detail which part of the publication was written by myself alone and have fully referenced such publications. H. This thesis does not contain text, graphics or tables copied and pasted from the Internet, unless specifically acknowledged, and the sources being detailed in the thesis and in the References sections. Signed: Date: 17 December 2020 i ABSTRACT In the pre-constitutional dispensation, the courts could grant an eviction order without considering the risk of homelessness to the evictees. This was possible because there was no constitutional right of access to adequate housing, and there was no law obligating the government to provide alternative accommodation to vulnerable evictees. In this context, the owner’s right to peaceful use and enjoyment of private property to the exclusion of non-owners was absolute and it trumped the interests of the unlawful occupiers. Notably, this legal framework favoured historical landowners, while undermining the historical dispossession of land which in turn impacted on vulnerable evictees’ housing interests. In the new constitutional dispensation, there is a shift away from the pre-constitutional legal framework. The eviction landscape has been transformed by section 26 of the Constitution which gives everyone the right of access to adequate housing and not to be arbitrarily evicted. Section 26 further obliges the state to take all reasonable steps to realise the right of access to adequate housing. The subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) gives effect to section 26 of the Constitution. Accordingly, evictions are now qualified in terms of section 26 of the Constitution. In a situation where unlawful occupiers have no prospect of finding alternative accommodation of their own, a court may order local government to provide them with temporary alternative accommodation. Therefore, in the new constitutional dispensation the government has a constitutional duty to provide alternative accommodation to vulnerable evictees. Notably, the government has a central legitimate interest in evictions. To the extent that the government cannot provide alternative accommodation, a court may refuse to grant an eviction order or may suspend it until the government makes such provision. This new development aims to infuse the principles of justice and equity into South African eviction law by balancing and reconciling the landowners’ interests with those of the unlawful occupiers. However, this transformative development is hindered by the government’s failure to play its central role, in the sense that if the government fails to provide alternative ii accommodation or provides an inadequate form of alternative accommodation the eviction will be refused or delayed. As a result, the landowners’ property rights and the unlawful occupiers’ housing rights will be compromised. Ultimately, the courts’ balancing approach will be hampered. Therefore, this study indicates that the government has failed to play its central role in evictions. As such, balancing the landowners and the unlawful occupiers’ opposed interests in the context of eviction is a complex exercise. The study concludes that it is impossible to balance the relevant rights without the meaningful involvement of government. iii ACKNOWLEDGMENTS “Let the LORD be magnified, who has pleasure in the prosperity of His servant”, Psalm 35:27. I thank God for giving me the strength and endurance to complete this thesis. All the glory and honour be unto your name! I am indebted to a great number of people who have played an important part in the preparation of this study. In particular and foremost, ngithanda ukubonga umama wami u Melta Funani Magagula, ngemikhuleko yakhe eyinsika yempumelelo yami. Njengo Abrahama ecwadini ka Genesisi 17:18 owakhulekela indodana yakhe kuNkulunkulu wathi, “Sengathi u-Ishmayeli angaphila phambi kwakho”, Impela imithandazo yakho mama iyangiphilisa futhi inendima enkulu ezifundweni zami nase empilweni yami nje iyonke. I wish to express my sincere gratitude to my supervisor, Dr Maropeng Mpya for his supervision, guidance and kindness that was indeed valuable. Without your support, I would not have been able to complete this thesis. I have learned so much from you. Thank you for being patient teacher and for your tireless contribution of time, energy, support and encouragement. I would further like to thank my girlfriend Ms Sethembiso Langazane, a very smart and disciplined woman who continues to play a significant role in my life, for reviewing and structuring my thesis. Ngyabonga kakhulu Mtolo, Ndlangamandla, nangamazwi akho nje okungiduduza nokunginika ithemba. To my boss and my colleague Mr Godfrey Lusenga, I will forever be indebted to you. Thank you for seeing potential in me as your associate attorney. It is through you that I developed interest in researching about eviction and property law. And thank you for always giving me time and days-off to focus on my discipline. It a great privilege to practice law under your supervision and I am forever grateful for all the lessons and wisdom you shared so humbly. iv Table of Contents DECLARATION REGARDING ORIGINALITY ........................................................... i ABSTRACT ............................................................................................................... ii ACKNOWLEDGMENTS ........................................................................................... iv LIST OF ABBREVIATIONS .................................................................................... viii CHAPTER ONE ......................................................................................................... 1 1.1 Introduction and background ............................................................................. 1 1.2 Research problem ........................................................................................... 10 1.3 Research questions ........................................................................................ 12 1.4 Preliminary literature review and research purpose ........................................ 12 1.5 Research Methodology ................................................................................... 15 1.6 Demarcation of the thesis ............................................................................... 16 1.7 Terminology .................................................................................................... 17 CHAPTER TWO....................................................................................................... 19 2.1 Introduction ..................................................................................................... 19 2.2 The legal and historical context of ownership ................................................. 20 2.2.1 The concept of ownership and the right to peaceful use and enjoyment .. 20 2.2.2 Roman Law ............................................................................................... 23 2.2.3 Roman-Dutch law ..................................................................................... 25 2.2.4 The Pandectists’ concept of ownership in South Africa ............................ 26 2.3 Common law and statutory law eviction remedies .......................................... 28 2.3.1 Common law remedy: The rei vindicatio ................................................... 28 2.3.2 Statutory remedy: The Prevention of Illegal Squatting Act 52 of 1951 (PISA) ................................................................................................................ 34 2.4 Concluding remarks ........................................................................................ 42 CHAPTER 3 ............................................................................................................. 45 v 3.1 Introduction ..................................................................................................... 45 3. 2 The right of access to adequate housing ....................................................... 47 3.2.1 The overview, meaning and scope of section 26 of