Chapter 2 of the Constitution of the Republic, 1996 (hereinafter referred to as “the Constitution”) makes provision for the right to property and also that of the right to adequate housing. What this simply means is that the latter mentioned is one of the country’s most essential basic rights of the Constitution, which is the supreme law of the country. 

The above mentioned is however limited in terms of section 36 of the Constitution which shall be discussed at a later stage in detail.

Section 25 of the Constitution reads as follows:

Property

25. (1) No one may be deprived of property except in terms of law of general application,

and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application—

(a) for a public purpose or in the public interest; and

(b) subject to compensation, the amount of which and the time and manner of

payment of which have either been agreed to by those affected or decided or

approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just

and equitable, reflecting an equitable balance between the public interest and the

interests of those affected, having regard to all relevant circumstances, including—

(a) the current use of the property;

(b) the history of the acquisition and use of the property;

(c) the market value of the property;

(d) the extent of direct state investment and subsidy in the acquisition and

beneficial capital improvement of the property; and

(e) the purpose of the expropriation.

(4) For the purposes of this section—

(a) the public interest includes the nation’s commitment to land reform, and to

reforms to bring about equitable access to all South Africa’s natural resources;

and

(b) property is not limited to land.

(5) The state must take reasonable legislative and other measures, within its available

resources, to foster conditions which enable citizens to gain access to land on an

equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past

racially discriminatory laws or practices is entitled, to the extent provided by an Act

of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of

past racially discriminatory laws or practices is entitled, to the extent provided by an

Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other

measures to achieve land, water and related reform, in order to redress the results

A lot of people are under the impression that the latter mentioned section solely deals and refers to immovable property, which is in actual fact not the case. Sub-section 4(b) of the section clearly stipulates that ‘property’ in this instance is not limited to ‘land’, which gives the impression or should I say an indication, that this section deals with both movable and immovable property. The content thereof is very clear and the crux thereof is that the state is in a position to expropriate land from an institution or a person in his/her personal capacity considering that all the relevant mentioned factors are taken into consideration and adhered to before such a process can take place.

The second leg of the above section gives everyone who lives in this country a right to own property provided that such ownership falls within the parameters of the relevant legislation. Nobody should unreasonably be deprived of the latter mentioned basic right.     

On the other hand, section 26 of the Constitution deals with a different matter of adequate housing,  and reads as follows:

Housing

26. (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available

resources, to achieve the progressive realization of this right.

(3) No one may be evicted from their home, or have their home demolished, without an

order of court made after considering

The section outlined above is slightly different from section 25 of the Constitution but may well be aligned. The section indicates that it is a basic right to each and every citizen living in the Republic of South Africa to have shelter which is adequate. By including the word ‘adequate’ in the wording thereof, was to avoid citizens claiming this right by way of feeling entitled to luxurious housing which the government would for obvious reasons be unable to cater for.

As indicated earlier that this section may well be aligned with section 25 of the Constitution in that  should it occur for some other reasonable reason that the state evicts a person his/her property, the state has to simultaneously ensure that such a person is catered with alternative adequate housing as it would be in line with that person’s constitutional right.  

And lastly so, the whole constitution should be interpreted in alignment with section 36. The latter mentioned section reads as follows:

Limitation of rights

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general

application to the extent that the limitation is reasonable and justifiable in an open

and democratic society based on human dignity, equality and freedom, taking into

account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no

law may limit any right entrenched in the Bill of Rights.

A practical example in this regard is that the Constitution states that everybody has the right to housing, right to water and sanitation. But taking into consideration the resources at our Government’s disposal, we can safely say that not everybody currently has a proper built house or shelter. So that right is limited by the amount of resources at our Government’s disposal.