Abstract:
In this dissertation, I identify the tension between the s25 right to property and s26
right to access to adequate housing. This tension is a result of the historical narrative
of the Republic of South Africa where forced evictions were a weapon in the arsenal
of Apartheid and the common law right of property was practised in a discriminatory
manner.
With the advent of a constitutional dispensation four sources of law were created.
The Constitution of the Republic of South Africa, 1996 as the supreme law of the
nation, from which all other laws derive their legitimacy; legislation enacted by
parliament; common law and to a limited extent indigenous law. Further, how the
Constitutional Court deals with the different sources of law in eviction cases has an
impact on the outcome of the case.
The subsidiarity methodology entails that when deciding a given matter one first
looks to the legislation enacted to give effect to a right in the Bill of Rights; if the
matter is not adequately covered by legislation, the courts consider the common law
and only if the constitutional validity of the legislation is attacked does one make
direct resort to a right in the Bill of Rights.
I argue that the subsidiarity methodology is the most appropriate tool to assist the
courts in dealing with the various sources of law from analysing CC eviction cases
from 2007 to 2015. The implications of this dissertation are the that constitutional
adjudication needs to develop the subsidiarity methodology further and that
academic commentary should do same.
