Die afweging van belange van grondeienaars en plakkers

Abstract

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.