Constitutional Property Rights in the "Residents of Joe Slovo" Case

This issue dealt with whether, and on what terms, residents of an "informal settlement" on government land near Cape Town could be evicted as part of the process of developing new housing for poor South Africans. The eight justices who ruled on the case all agreed that they could be evicted, and all insisted on considerably more substantial rights for those being evicted than the trial court had provided.

The justices sharply disagreed, however, on whether the residents had ever been "lawful occupiers" of the land in question. Even if they had (as five justices felt), the lawfulness of their occupation came to an end when the government sought to evict them as part of its housing program -- but the justices felt that the question of whether the occupants of the land were on the land lawfully in the first place was an important question about the status of landless people in South Africa, even if the answer did not make a direct difference to the outcome of this case.

Broadly speaking, the justices disagreed about whether there had or had not been consent from the city of Cape Town (the owner of the land) to the occupants' living there. Justice Yacoob, joined by two of his colleagues, maintained that a city can only consent by a formal resolution, and that consent at common law was a product of an agreement between the party seeking or receiving consent and the party giving it -- and found none of this present. Other justices contended that the pattern of action by the city -- which had been aware of the residents' presence for many years, had negotiated with them on various issues, and had provided substantial infrastructural support -- indicated that in fact the City had given consent.

The "broader consent" approach itself seems to have departed considerably from the strict provisions of prior property law. But the most dramatic proposal, advanced in detail as one thread of Justice Sachs' opinion (also for three justices, including himself), seemed to go even further. Justice Sachs maintained that the City had given consent, but he did so partly on the ground that it would have been "manifestly unreasonable," and hence unconstitutional under South Africa's constitutional right to housing [discussed more below], for the City "[t]o have refused the families the right to erect their temporary shelters on that land." (paragraph [hereafter "par"] 354) Arguing that "[a]ny inferences to be drawn from the conduct of the [City] Council should ... be based on the assumption that at all times it was aware of, and seeking to comply with, its constitutional and statutory obligations to the community" (par 346), Sachs concluded that the families who had moved on to the City's land had a "right to enjoy relatively undisturbed occupancy" there (par 359). (Deputy Chief Justice Moseneke concurred with Sachs, and developed a similar argument of his own, see pars 148, 154.)

As he put it, this right "was neither a real right as understood by common law principles of land law, nor a contractual right as created in terms of the common law. Rather it was an authorisation specific to its context, granted in terms of public law considerations enabling the residents to reside lawfully on the land for an indeterminate but terminable period" (par 359).

This is a dramatic reconceptualization of property, certainly deserving the term "transformative" that Justice Sachs embraces (par 344). At the least, it suggests that governments' decisions about land and residents of land will be interpreted through a powerful constitutional lens, so as to ensure that the meaning of those decisions is, or is made to be, consistent with constitutional requirements as those come to be understood. At the most, it suggests that section 26 of the South African constitution (which guarantees everyone "the right to have access to adequate housing" and requires the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right") has created a new category of property rights -- rights of the poor to the use of unoccupied government land, rights of such users to government infrastructural support during their use, rights to "engagement" with the government if they are to be evicted (I'll discuss "engagement," and the duties it imposes on residents as well as government, in another post), but nevertheless not (as all justices agree) rights to avoid being evicted when eviction is reasonably deemed necessary as part of the provision of housing rights for all.

Exactly how far such a right might extend remains to be seen. It may well be that the Court will never mark out its exact dimensions, and that the very nature of this right is to remain conditional and incompletely defined. But there are issues that might arise? For example, in South Africa constitutional rights can, depending on circumstances, apply to regulate the conduct of private actors as well as government bodies. Could there by circumstances in which a private landowner is constitutionally obliged to permit homeless people to move on to his or her land? Or could there be a point at which residents have exercised their constitutional right of occupancy for so extended a period that it acquires greater definiteness -- to the point, perhaps, that they could only be evicted as part of a government housing program if they were guaranteed return to the land after the program's new construction is complete? (The desire to return was a very important theme of the Joe Slovo case, but the question of an absolute right to return was not adjudicated.) And to what extent might other constitutional socioeconomic rights provisions similarly oblige a government to support the self-help of destitute people? It seems inevitable that the contours of this new constitutionally-based right of residence, if it is embraced by the full Constitutional Court, will have to be further articulated in cases to come.