Resolving the tension between the section 25 Right to Property and section 26 Right to Housing The Constitutional Court of South Africa subsidiarity methodology

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.