Resolving the tension between the section 25 Right to Property and section 26 Right to Housing The Constitutional Court of South Africa subsidiarity methodology

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In this dissertation, I identify the tension between the s25 right to property and s26
right to access to adequate housing. This tension is a result of the historical narrative
of the Republic of South Africa where forced evictions were a weapon in the arsenal
of Apartheid and the common law right of property was practised in a discriminatory
manner.
With the advent of a constitutional dispensation four sources of law were created.
The Constitution of the Republic of South Africa, 1996 as the supreme law of the
nation, from which all other laws derive their legitimacy; legislation enacted by
parliament; common law and to a limited extent indigenous law. Further, how the
Constitutional Court deals with the different sources of law in eviction cases has an
impact on the outcome of the case.
The subsidiarity methodology entails that when deciding a given matter one first
looks to the legislation enacted to give effect to a right in the Bill of Rights; if the
matter is not adequately covered by legislation, the courts consider the common law
and only if the constitutional validity of the legislation is attacked does one make
direct resort to a right in the Bill of Rights.
I argue that the subsidiarity methodology is the most appropriate tool to assist the
courts in dealing with the various sources of law from analysing CC eviction cases
from 2007 to 2015. The implications of this dissertation are the that constitutional
adjudication needs to develop the subsidiarity methodology further and that
academic commentary should do same. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

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1. http://hdl.handle.net/2263/53163
2. Mosalagae, R 2016, Resolving the tension between the section 25 Right to Property and section 26 Right to Housing The Constitutional Court of South Africa subsidiarity methodology, LLM Mini Dissertation, University of Pretoria, Pretoria, viewed yymmdd <http://hdl.handle.net/2263/53163>
3. A2016
4. 4353056

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Identifer	oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/53163
Date	January 2015
Creators	Mosalagae, Refhilwe
Contributors	Brand, Danie (Jacobus Frederick Daniel, 1968- ), [e-mail]
Publisher	University of Pretoria
Source Sets	South African National ETD Portal
Language	English
Detected Language	English
Type	Mini Dissertation
Rights	© 2016 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.