The impact of Section 26 of the Constitution on the eviction of squatters in South African law

[摘要] ENGLISH ABSTRACT: This dissertation considers the housing rights of unlawful occupiers in the post-1994constitutional dispensation. Section 26 of the Constitution of the Republic of SouthAfrica, 1996 affords everyone a right of access to adequate housing. This provision is adecisive break with the apartheid past, where forced eviction banished black people tothe periphery of society. The central hypothesis of this dissertation is that theConstitution envisages the creation of a society that is committed to large-scaletransformation. This dissertation posits that it is impossible to realise the fulltransformative potential of section 26 of the Constitution in the absence of anindependent and substantive understanding of what it means to have access toadequate housing.This dissertation traverses legal theory as well as the common law of evictions,constitutional law and international law. A consciously interdisciplinary approach isadopted in seeking to develop the content of section 26 of the Constitution, drawing onliterature from social and political science. This dissertation develops an organisingframework for giving substantive content to section 26(1) of the Constitution withreference to the International Covenant on Economic, Social and Cultural Rights; theConvention for the Protection of Human Rights and Fundamental Freedoms; theRevised European Social Charter, the American Convention on Human Rights and theAfrican Charter on Human and Peoples' Rights.This dissertation shows that the adjudication of eviction disputes has moved awayfrom a position under the common law where Courts had no discretion to refuse evictionorders based on the personal circumstances of the squatters. The adjudication of theeviction of unlawful occupiers now requires a context-sensitive analysis that seeks tofind concrete and case-specific solutions. These solutions are achieved by consideringwhat would be just and equitable for both the land owner and the unlawful occupiers.This dissertation also shows that the government has a markedly different role to fulfil inpost-apartheid evictions through the necessary joinder of local authorities to evictionproceedings, meaningful engagement with unlawful occupiers and the provision ofalternative accommodation in terms of its constitutional and statutory obligations.

[发布机构] Stellenbosch University