The purpose of this dissertation is to investigate the development of the notion of
property concept since the promulgation of the Constitution of South Africa 108 of
1996 with special reference to the influence of statutory developments and especially
the influence of Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
In the preamble to the Constitution it is made very clear that the injustices of the past
are recognised and that it is endeavoured to rectify the division of the past and that
all efforts are to be made to build a future that is characterised for the acknowledgement
of human rights, democracy, equality and peaceful co-existence.
In the Bill of Rights the right to property is acknowledged as a fundamental right and
is it also mentioned that the state must respect, protect, promote and fulfil the rights
in the Bill of Rights. Before the Constitution common law protection for ownership
was well established, but no statutory protection for ownership existed. The effect of
the property clause (section 25) of the Constitution was that not only ownership, but
also other rights to property protected. The property clause prescribes that no one
may be deprived of his property, except in terms of law of general application, and no
law may permit arbitrary deprivation of property.
No fundamental right is absolute with the effect that conflict may arise between the
different clauses of the Bill of Rights. A typical example may be where the rights of
an owner of immovable come into conflict with another person's right to housing. It
must, however, always be borne in mind that no fundamental right is absolute that it
is possible, under certain circumstances, to limit a fundamental right. This limitation
may 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 Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998. In terms of this Act it
is required that certain formalities are to be fulfilled before an unlawful occupier may
be evicted from property. The relevant part of the Act is the definition of an illegal
occupier. Despite the fact that it was decided in several court cases that an illegal
occupier does not include a person who previously had permission to occupy the
property, 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 lessees
who's lease agreements have expired or a mortgagor who's mortgage has been
foreclosed and who now refuses to vacate the property in question.
The key findings are that the property concept has developed drastically since the
Constitution. In regard to statutory development the most important development
was the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
which was found to be applicable to all unlawful occupiers of property, regardless of
the fact that the occupiers may previously have occupied the property lawfully. The
Legal Amendment Bill is to rectify this in order to ensure that the Prevention of lllegal
Eviction from and Unlawful Occupation of Land Act will no longer be applicable to
such occupiers and specifically to lessees who's lease agreements have expired or
mortgagors who's bond have been called up and who now refuse to vacate the
property in question
This amendment will bring the (often) conflicting fundamental rights to property and
housing 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 between
different fundamental rights.
The method used in this dissertation was the analytical study of statutes, court cases
and articles in legal magazines. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2004.
| Identifer | oai:union.ndltd.org:NWUBOLOKA1/oai:dspace.nwu.ac.za:10394/177 |
| Date | January 2004 |
| Creators | May, Johan André Hugo |
| Publisher | North-West University |
| Source Sets | North-West University |
| Detected Language | English |
| Type | Thesis |
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