Die afweging van belange van grondeienaars en plakkers

[摘要] The purpose of this dissertation is to investigate the development of the notion ofproperty concept since the promulgation of the Constitution of South Africa 108 of1996 with special reference to the influence of statutory developments and especiallythe influence of Prevention of Illegal Eviction from and Unlawful Occupation of LandAct 19 of 1998.In the preamble to the Constitution it is made very clear that the injustices of the pastare recognised and that it is endeavoured to rectify the division of the past and thatall efforts are to be made to build a future that is characterised for the acknowledgementof human rights, democracy, equality and peaceful co-existence.In the Bill of Rights the right to property is acknowledged as a fundamental right andis it also mentioned that the state must respect, protect, promote and fulfil the rightsin the Bill of Rights. Before the Constitution common law protection for ownershipwas well established, but no statutory protection for ownership existed. The effect ofthe property clause (section 25) of the Constitution was that not only ownership, butalso other rights to property protected. The property clause prescribes that no onemay be deprived of his property, except in terms of law of general application, and nolaw may permit arbitrary deprivation of property.No fundamental right is absolute with the effect that conflict may arise between thedifferent clauses of the Bill of Rights. A typical example may be where the rights ofan owner of immovable come into conflict with another person's right to housing. Itmust, however, always be borne in mind that no fundamental right is absolute that itis possible, under certain circumstances, to limit a fundamental right. This limitationmay also occur in the case of property rights.Certain statutory developments took place since the promulgation of the Constitution.The most important of these developments is of course the Prevention of IllegalEviction from and Unlawful Occupation of Land Act 19 of 1998. In terms of this Act itis required that certain formalities are to be fulfilled before an unlawful occupier maybe evicted from property. The relevant part of the Act is the definition of an illegaloccupier. Despite the fact that it was decided in several court cases that an illegaloccupier does not include a person who previously had permission to occupy theproperty, it was decided by the Supreme Court of Appeal in Ndlovu v Ngcobo :Bekker v Jika that the act is applicable to such occupiers and specifically to lesseeswho's lease agreements have expired or a mortgagor who's mortgage has beenforeclosed and who now refuses to vacate the property in question.The key findings are that the property concept has developed drastically since theConstitution. In regard to statutory development the most important developmentwas the Prevention of Illegal Eviction from and Unlawful Occupation of Land Actwhich was found to be applicable to all unlawful occupiers of property, regardless ofthe fact that the occupiers may previously have occupied the property lawfully. TheLegal Amendment Bill is to rectify this in order to ensure that the Prevention of lllegalEviction from and Unlawful Occupation of Land Act will no longer be applicable tosuch occupiers and specifically to lessees who's lease agreements have expired ormortgagors who's bond have been called up and who now refuse to vacate theproperty in questionThis amendment will bring the (often) conflicting fundamental rights to property andhousing into a greater degree of harmony, even though it will not solve all problems.It is the duty of the State to address this and all other potential conflict betweendifferent fundamental rights.The method used in this dissertation was the analytical study of statutes, court casesand articles in legal magazines.

[发布机构] North-West University