Exclusivity of Ownership, Security of Tenure and Eviction Orders: A Critical Evaluation of Recent Case Law

ABSTRACT

Both the Constitution and land reform laws have introduced provisions dealing with the granting of eviction orders. The interpretation and application of these provisions have caused considerable confusion and controversy in recent case law, resulting in conflicting decisions and uncertainty. The uncertainty and confusion are exacerbated by the fact that different considerations and principles apply in different circumstances, depending on the specific land reform law or measure to be applied. In the broadest sense, this issue and the surrounding debates raise difficult technical interpretation problems, but they also involve more general, fundamental questions of reform and transformation. At the heart of the debate is the reform or development of the common law, and particularly one of the strongest and most central principles of common law, namely the protection of landownership, in view of the reformist goals of the Constitution and its attendant land reform laws. In this article, some of the problems and the case law dealing with them are analysed and discussed critically. The theoretical assumption upon which the analysis is based is that the issue cannot be approached narrowly as a technical matter of interpretation, and that broader social and political goals associated with the development of a new constitutional democracy have to be taken into account. Developments in recent case law are discussed within the framework of a general debate about transformation as a struggle between stability and change.