n South African Law Journal - Arbitrary deprivation of property : an argument for the payment of compensation by the state in certain cases of unlawful occupation

Volume 131, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The Constitution radically altered the substantive norms that underpin the division, regulation and enforcement of property and housing rights in South Africa. Under the aegis of Constitutional Court, there has been a deliberate effort to bring into being a system of legally enforceable rights and duties which, when viewed as a whole, afford commensurate protection to the often conflicting interests of individuals. This process of reconstruction, however, is far from complete. One of the areas which requires further development is the law regulating evictions. As regards the rights of unlawful occupiers, it has been held that evictions that would result in homelessness may not be executed until alternative accommodation is provided by the state. Whilst this delay in the execution of an eviction order will often be commercially unbearable, landowners have been told to be patient. In this article it is argued that the existing legal scheme, without more, fails to strike a proper balance among the rights and interests of owners, occupiers and society. It is argued that this institutional failure arbitrarily deprives landowners of property and that to remedy this constitutional defect such owners must, as a rule, be afforded a compensatory remedy against the state.

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