ESR Review : Economic and Social Rights in South Africa

The main societal challenge causing instability in most areas of South Africa, especially in white commercial farms, is that the vast majority of black people continue to live under insecure tenancy on privately owned lands. The fact that the land is registered in their names and that they have title to the land confers on them a form of complete and unreserved power of disposal. This reasoning is informed mainly by the Roman-Dutch Law principle of dominium. In terms of this principle, the owner of the land has the unqualified discretion to evict anyone at any time, without even serving a notice, and to decide unilaterally who should reside on the land, for how long, and under what circumstances. Due to the absolute powers of ownership stemming from the dominium principle, large numbers of illegal evictions have been noted. 

When tenants are evicted, they usually have no alternative place to resort and are thus compelled by the landlessness situation to submit themselves to the exploitative and inhumane demands of the land owners. This is so because, in the absence of capitulation on the victims’ side, forced eviction is the unavoidable outcome. Upon eviction, these victims have nowhere else to go and suffer terrible hardships stemming from homelessness and destitution. 

It is against this backdrop that this review discusses the judgment of the Constitutional Court handed down on 13 July 2017 in the case of Baron and Others v Claytile (Pty) Ltd and Another [2017] ZACC 24. Central to this judgment is a controversial interpretation of section 26 of the Constitution of the Republic of South Africa, 1996, with the controversy relating to what constitutes ‘adequate accommodation’ in eviction matters and what duty rests on the state to make alternative accommodation available to the person under threat of eviction. Moreover, the judgment has determined whether it is ‘just and equitable’ to evict applicants from privately owned dwellings in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). It is important to note that the availability of alternative accommodation, it was argued, should be a precondition of granting an eviction order. This article looks at the historical context of evictions and the legislative framework governing them. It goes further to discuss the effects of the state’s failure to fulfil its duty to provide alternative accommodation.

From 1980 to 2017, Robert Mugabe ruled Zimbabwe through a regime that posed as ‘democratic’ but which for all intents and purposes was a dictatorship. The power of the government stemmed not from the will of the people but its control of the armed forces and intelligence operatives. As a result, human rights abuses were commonplace. Poor governance, coupled with sanctions, led to the collapse of social systems. Poverty and hunger were the order of the day, and many basic socio-economic rights (SERs) could not be realised. In 2017, the military intervened and succeeded in pressurising Mugabe into resigning. His former vice president, Emmerson Mnangagwa, took over as president, promising a raft of changes, including respect for human rights. Against this backdrop, we look at developments in human rights, in particular SERs, since Mugabe’s exit.