Authored By: Nomsa
University of Johannesburg
Introduction
The constitutional structure of post-apartheid South Africa is revolutionary in nature. Its aim is to undo the spatial injustices of the past and to create a new order founded on human dignity, equality and freedom. There are a number of tensions within this constitutional structure, but one of the most significant is the issue of socio-economic rights, in particular the right of access to adequate housing guaranteed under section 26 of the Constitution of the Republic of South Africa, 1996.1
It is the role of the Constitutional Court of South Africa to weigh the competing mandates of the Constitution. On the one hand are the constitutional and common law rights of private landowners to the use and enjoyment of their property free from arbitrary deprivation. On the other hand are the constitutional rights of occupiers who are vulnerable to eviction, which include their right to housing assistance from the government. These competing mandates must be weighed against each other in order to avoid hierarchical thinking.2 This article examines the balance the Constitutional Court of South Africa has struck between the right to housing and property rights, and argues that, despite practical difficulties, that balance is doctrinally sound.
The Constitutional and Statutory Framework
In order to understand how the courts reconcile housing and property rights, one must first consider the textual provisions of the 1996 Constitution. Section 25(1) stipulates that no one may be deprived of property except in terms of a law of general application, and that no law may permit the arbitrary deprivation of property.3 Sections 25(2) and (3) deal with expropriation and the public interest. At the same time, section 25(5) requires the State to take reasonable legislative and other measures, within its available resources, to facilitate access to land.4
Housing is expressly provided for in section 26. The right of everyone to have access to adequate housing is entrenched in section 26(1). However, section 26(2) requires the State to take reasonable legislative and other measures, within its available resources, towards the progressive realisation of the right.5 It is important to note that section 26(3) prohibits the eviction of a person from his or her home, or the demolition of a home, without a court order made after considering all the relevant circumstances.6
The legislature gave effect to section 26(3) through the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The PIE Act outlawed self-help and summary evictions by private landowners and imposed a statutory requirement that any eviction order made by a court be “just and equitable”.7 In making that determination, the court must consider, among other things, whether land is or may be made available by a municipality or any other organ of state for the relocation of the unlawful occupiers. In other words, socio-economic considerations have been statutorily introduced into private property disputes.
Judicial Evolution: Balancing Ownership and Housing
Port Elizabeth Municipality v Various Occupiers marked the first occasion on which the Constitutional Court had to define the relationship between sections 25 and 26 of the Constitution.8 According to Albie Sachs J, who wrote the judgment of the Court, “The Constitution sets up the ordinary rights of property ownership in competition with the equally new right not to be deprived arbitrarily of one’s home.” The Court made clear that the judicial task was not to determine which right carried more weight than the other, but rather to mediate their competing claims in a constitutional manner.9
That balancing exercise became more difficult in President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd.10 Many people living in desperate circumstances took possession of private commercial land owned by Modderklip, and the eviction order could not be executed without the assistance of the government. When the government did not provide other land or accommodation for the occupiers, Modderklip’s property rights became illusory.11 The Court found that the State had violated its duties towards the property owner by infringing section 25(1) of the Constitution, and had at the same time violated its duties towards the occupiers by infringing section 26.12
Refining the Obligations: The Blue Moonlight Doctrine
The responsibilities of private landowners and municipalities were defined further in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd.13 The owner of the property in that case sought to remove unlawful occupiers who had been there for years, in order to make use of the land. Notably, the City of Johannesburg contended that it had no responsibility to offer alternative accommodation to people evicted by private landowners.14
The Constitutional Court held that, while private property owners are entitled to enforce their ownership rights, those rights must be understood within the context of the requirement that any eviction be just and equitable. Writing for the Court, Justice Johan van der Westhuizen affirmed that a private owner cannot be expected to provide free housing to unlawful occupiers indefinitely, as doing so constitutes an unconstitutional deprivation of property.15 However, the Court simultaneously ruled that municipalities bear a positive obligation under section 26 to provide temporary emergency accommodation to vulnerable occupiers facing homelessness, even when they are evicted by private entities.16 Thus, an eviction order sought by a private landowner can be made just and equitable only when it is linked to the provision of temporary housing by the local authority.
Later decisions have upheld the position that the private landowner does not bear social welfare responsibilities. This is seen in the Constitutional Court’s decision in Grobler v Phillips and Others,17 which holds that unlawful occupiers cannot forever obstruct the proprietary interests of a private landowner simply because they prefer particular land, and that PIE was never intended to allow indirect expropriation.18
Critical Analysis: Has the Court Struck the Right Balance?
Whether the Constitutional Court has struck the right balance depends on two questions: the doctrinal coherence of its jurisprudence, and its effectiveness in practice. From a doctrinal point of view, the Court has developed a well-balanced body of law. That balance exists because the Court has refused to accept either the absolutist capitalist view, which treats private property rights as absolute even where this results in homelessness, or the radical populist view of property, which does not recognise the property right and permits unrestricted occupation.19
The doctrinal connection between property rights and housing rights lies in just and equitable mediation through municipal responsibility. In Blue Moonlight, the Court was correct in establishing that the housing problem is a problem of the State, and not of the private landowner.20 By requiring municipalities to provide temporary emergency accommodation, the Court has shielded property owners from paying the price for government failure, while at the same time protecting citizens from inhumane dispossession.
In practice, however, considerable systemic friction arises. Cities throughout South Africa regularly find themselves unable to provide sufficient emergency housing, resulting in lengthy litigation, crowded courts, and private landowners left in prolonged legal limbo. Although Modderklip and Blue Moonlight have created clear guidelines, these rulings frequently serve only to highlight the wide gap between judicial decision-making and municipal capability.21 It is suggested that dependence on municipal emergency housing programmes leaves municipalities at an impasse, because of the financial strain they face in meeting their constitutional obligations.
The second source of conflict relates to the location of temporary housing. Where occupiers are evicted from inner-city areas, they often resist relocation to remote, peripheral areas where economic prospects are limited and infrastructure is poor. Although the Constitutional Court has recognised the issue of location, the simple fact remains that the cost of inner-city property and ownership makes the balancing act very challenging.
Nevertheless, despite these administrative and procedural flaws, the Court has achieved the right conceptual and normative approach. An approach that allowed unlimited self-help or complete proprietary power would erode the constitutional values of human dignity and social justice, which are of prime importance. The constitutional approach adopted by the Court, which treats the use of private property as a social function burdened with constitutional duties, is an example of the golden mean.
Conclusion
The jurisprudence of the Constitutional Court of South Africa on the right to housing and the right to private property ownership reflects an effort by the Court to reconcile constitutional principles that appear to conflict. Through legislation such as the PIE Act and landmark rulings such as Port Elizabeth Municipality, Modderklip and Blue Moonlight, the Court has determined that private property rights and socio-economic rights relating to housing are inherently interdependent rather than mutually incompatible.22
Despite the challenges posed by municipal incapacity and resource limitations, the jurisprudence is well founded. By refusing to sacrifice the principle of private property ownership to deficiencies in the supply of housing, while at the same time not disregarding the plight of the occupiers, the Constitutional Court has managed to navigate one of the most difficult areas of constitutional law.23
Footnote(S):
1 Constitution of the Republic of South Africa, 1996, ss 25(1) and 26(1)–(3).
2 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 23.
3 Constitution of the Republic of South Africa, 1996, s 25(1).
4 Constitution of the Republic of South Africa, 1996, s 25(5).
5 Constitution of the Republic of South Africa, 1996, s 26(1)–(2); Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 34–45
6 Constitution of the Republic of South Africa, 1996, s 26(3).
7 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(6)–(8).
8 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) paras 15–23.
9 Port Elizabeth Municipality (n 8) para 23.
10 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) paras 40–47.
11 Modderklip (n 10) paras 42–47.
12 Modderklip (n 10) paras 45–47.
13 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) paras 40–44.
14 lue Moonlight Properties (n 13) paras 67–74.
15 Blue Moonlight Properties (n 13) para 74.
16 Blue Moonlight Properties (n 13) paras 93–104.
17 Grobler v Phillips and Others 2023 (1) SA 305 (CC) para 36.
18 Grobler (n 17) paras 37–38.
19 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (4) SA 768 (CC) para 50.
20 Blue Moonlight Properties (n 13) paras 93–104.
21 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC) paras 14–25.
22 Constitution of the Republic of South Africa, 1996, ss 25 and 26; Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4; Port Elizabeth Municipality (n 8) para 23; Modderklip (n 10) paras 42–47; Blue Moonlight Properties (n 13) paras 93–104.
23 Constitution of the Republic of South Africa, 1996, ss 25(1) and 26(3); Port Elizabeth Municipality (n 8) para 23.
Bibliography
Legislation
- Constitution of the Republic of South Africa, 1996
- Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
- Rental Housing Act 50 of 1999
Cases
- City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC)
- First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (4) SA 768 (CC)
- Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)
- Grobler v Phillips and Others 2023 (1) SA 305 (CC)
- Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC)
- Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
- President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC)
