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Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable
Unlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to...
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| Format: | Thesis |
| Language: | English |
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Department of Public Law
2021
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| _version_ | 1867613268732805120 |
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| access_status_str | Open Access |
| author | Jeewa, Tanveer Rashid |
| author2 | Lutchman, Salona |
| author_browse | Jeewa, Tanveer Rashid Lutchman, Salona |
| author_facet | Lutchman, Salona Jeewa, Tanveer Rashid |
| author_sort | Jeewa, Tanveer Rashid |
| collection | Thesis |
| description | Unlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to it. In those instances, two core rights operate at odds with each other: the right of unlawful occupiers not to be arbitrarily evicted per section 26(3) of the Constitution, and the right of property owners not to be deprived of their property, except through the operation of a law of general application as per section 25 of the Constitution. When the unlawful occupation of private land is not contained, the number of unlawful occupiers grows rapidly, making immediate evictions impossible as they would be unjust and inequitable as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Constitutional Court has previously awarded constitutional damages in a similar case (President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5). Damages were to be paid until evictions have been completely carried out. Yet 15 years later, it is clear that the informal settlement on Modderklip's land has grown in size and acquired some level of permanence. This dissertation argues that such cases amount to an unjustifiable limitation of the land owner's right to not be deprived of property. Consequently, the dissertation makes a case for judicial expropriation as a just and equitable order under section 172(1)(b) of the Constitution. The effect of such an order on the principle of separation of powers is also considered and it is contended that, in such exceptional circumstances, the courts should not shirk away from the duty of holding the State accountable and dispensing justice to the parties by expropriating the land, even if it tests the flexibility of the principle of separation of powers. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/33726 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:33:26.520Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2021 |
| publishDateRange | 2021 |
| publishDateSort | 2021 |
| publisher | Department of Public Law |
| publisherStr | Department of Public Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/33726 Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable Jeewa, Tanveer Rashid Lutchman, Salona public law Unlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to it. In those instances, two core rights operate at odds with each other: the right of unlawful occupiers not to be arbitrarily evicted per section 26(3) of the Constitution, and the right of property owners not to be deprived of their property, except through the operation of a law of general application as per section 25 of the Constitution. When the unlawful occupation of private land is not contained, the number of unlawful occupiers grows rapidly, making immediate evictions impossible as they would be unjust and inequitable as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Constitutional Court has previously awarded constitutional damages in a similar case (President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5). Damages were to be paid until evictions have been completely carried out. Yet 15 years later, it is clear that the informal settlement on Modderklip's land has grown in size and acquired some level of permanence. This dissertation argues that such cases amount to an unjustifiable limitation of the land owner's right to not be deprived of property. Consequently, the dissertation makes a case for judicial expropriation as a just and equitable order under section 172(1)(b) of the Constitution. The effect of such an order on the principle of separation of powers is also considered and it is contended that, in such exceptional circumstances, the courts should not shirk away from the duty of holding the State accountable and dispensing justice to the parties by expropriating the land, even if it tests the flexibility of the principle of separation of powers. 2021-08-06T11:13:52Z 2021-08-06T11:13:52Z 2021 2021-08-06T11:13:33Z Master Thesis Masters LLM http://hdl.handle.net/11427/33726 eng application/pdf Department of Public Law Faculty of Law |
| spellingShingle | public law Jeewa, Tanveer Rashid Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| thesis_degree_str | Master's |
| title | Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| title_full | Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| title_fullStr | Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| title_full_unstemmed | Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| title_short | Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable |
| title_sort | unlawfully occupying the bridge to transformation a case for judicial exploration when evictions are unjust and inequitable |
| topic | public law |
| url | http://hdl.handle.net/11427/33726 |
| work_keys_str_mv | AT jeewatanveerrashid unlawfullyoccupyingthebridgetotransformationacaseforjudicialexplorationwhenevictionsareunjustandinequitable |