n Stellenbosch Law Review = Stellenbosch Regstydskrif - Property, social justice and citizenship : property law in Post-apartheid South Africa

Volume 19, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



The article examines the ability of property to advance social justice, promote citizenship and build sustainable and supportive communities, particularly in post-apartheid South Africa. Under the apartheid system property law was one of the mechanisms that undermined social justice and citizenship, but the 1996 Constitution requires that the law be developed in a way that would promote the constitutional goals of freedom, equality and human dignity. The article investigates three recent examples from legislation and case law, two from private law and one from land reform, in which the law arguably was or could have been developed so as to reverse the legacy of apartheid and promote social justice and citizenship, in line with the transformative goals of the Constitution. The examples involve judicial scrutiny of attachment and sale in execution of residential property; compensation for improvements to immovable property made by a lessee without the permission of the landlord; and the establishment of graves and burial sites on agricultural land without the permission of the landowner. The conclusion points out that these examples demonstrate wide-ranging possibilities for context-sensitive and constitution-conscious development of existing law that can create space for the advancement of social justice and the promotion of citizenship and community, even in what might initially appear to be politically neutral and narrow doctrinal disputes.

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