THE PLAUSIBILITY OF PRIVATE PROVISION OF HOUSING TO UNLAWFUL OCCUPANTS IN THE CONTEXT OF GENTRIFICATION

by Andrew Coelho (CLHAND002)

Submitted to The University Of Cape Town

in fulfilment of the requirements for the degree LLB

Faculty of Law, University of Cape Town

Date of submission: 20 September 2012

Supervisor: Professor Hanri Mostert

Mentor: Nkanyiso Sibanda

Department of Private Law, University of Cape Town

DECLARATION

1. I know that plagiarism is wrong. Plagiarism is to use another’s work and pretend that it is one’s own.

2. I have used the footnoting convention for citation and referencing. Each contribution to, and quotation in,

this opinion from the work(s) of other people has been attributed, and has been cited and referenced.

3. This opinion is my own work.

4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or

her own work.

Signature ______________________________

i

THE PLAUSIBILITY OF PRIVATE PROVISION OF HOUSING TO UNLAWFUL OCCUPANTS IN THE CONTEXT OF GENTRIFICATION

by

Andrew Coelho (CLHAND002)

Word Count: 9608

This paper was written under the auspices of the LandLawWatch project. The views and opinions expressed here are

the author's own and should not be attributed to the LandLawWatch project or the University of Cape Town.

ii

ABSTRACT

This paper explores the possible horizontality of the Constitutional right to access to adequate housing and its

relationship to the property clause in the Constitution. The horizontality of the right in this instance would involve the

provision of adequate housing by private landowners to evicted unlawful occupants. This issue is narrowed to the

context of gentrification in South Africa’s urban environments. The argument includes a review of relevant legislation

and policy, an examination of recent court decisions, including City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, and various scholarly arguments relating to this issue.

It will be shown that the scope for private responsibility is limited to specific circumstances and that a general duty on

private landowners would not be practically possible. Thus, in order to circumvent the problems facing horizontality of

the right of access to adequate housing, various alternative solutions will be considered. It will be concluded that

there is room for the private provision of access to adequate housing, but it will not imply the direct horizontal

application of the right to adequate housing.

iii

Table of Contents

1. Introduction...............................................................................................................................................................51.1. Outline of argument...................................................................................................................61.2. Gentrification: brief overview........................................................................................................7

2. Current legal framework...........................................................................................................................................82.1. Constitution, legislation and policy.................................................................................................82.2. Case Law..............................................................................................................................10

2.2.1. Modderklip......................................................................................................................102.2.2. Blue Moonlight.................................................................................................................112.2.3. Scholarly Responses.........................................................................................................12

3. Problems with private responsibility.....................................................................................................................143.1. Sections 25 and 26..................................................................................................................143.2. Economic problems.................................................................................................................173.3. Practical issues.......................................................................................................................17

4. A third way?.............................................................................................................................................................195. Conclusion...............................................................................................................................................................24Bibliography................................................................................................................................................................26

Literature.....................................................................................................................................26Printed....................................................................................................................................26Electronic................................................................................................................................27

Primary Sources...........................................................................................................................27Cases.....................................................................................................................................27Legislation...............................................................................................................................27

iv

5

1. IntroductionIn South Africa, approximately 825 000 people were evicted from their homes between 1995 and 2005.1

At the same time, up to 500 000 families were on the housing shortlist waiting for homes in

Johannesburg alone.2 Research has shown that although there are policies in place to provide housing

to the poor and homeless, there is no clear sign that the levels of homelessness in South Africa are

being improved by those policies.3 These facts cast serious doubt over the efficacy of the state’s current

housing policies. Alternatives need to be considered to prevent an exacerbation of the homelessness

problem. This paper deals with an aspect of the larger problem, namely displacement and

homelessness caused by gentrification. It examines the issue by considering the imperatives of the

constitutional right to access to adequate housing as it applies to the state and private landowners.

Gentrification is the process whereby the residents of an area are gradually replaced by residents of a

different, usually wealthier, social class.4 This is done through reinvestment in the built environment,

such as buildings and infrastructure.5 Gentrification is often regarded as a positive aspect of urban

renewal,6 which is defined as “an integrated process targeting the regeneration of certain

underdeveloped geographic areas to achieve sustainable development by bringing a balance between

the social, economic, environmental and infrastructural aspects of City Life.”7 However, there are

implications for those already living in areas where gentrification occurs, especially when landowners

take the opportunity to exploit rising property values. This often leads to the tenants being homeless, as

they would no longer have the means to live in such areas.

An example of gentrification can be found in the case of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd (hereinafter referred to as Blue Moonlight).8 In that matter, the

Constitutional Court held that section 26 of the Constitution required the Johannesburg Metropolitan

Municipality to adjust its housing policy such that emergency shelter must be provided to tenants

evicted for reasons other than that their building is unsafe. The reasons for eviction in that case related

to gentrification. Regardless of those reasons, however, the provision of emergency housing after

eviction places a burden on the State, which is already struggling to provide adequate housing on a

broad scale. Therefore, one might question whether this finding was correct.

1 Chenwi 2008 Human Rights Law Review 107.2 Centre on Housing Rights and Evictions Forced Evictions in Johannesburg 6.3 Cross et al 2010 Development South Africa 6.4 Hedin et al 2012 Annals of the Association of American Geographers 448.5 Hedin et al 2012 Annals of the Association of American Geographers 448.6 Dubin 1993 Minn Law Review 770.7 Presidential Urban Renewal Program 8.8 2011 [ZACC] 33.

6

A second issue is the direct and indirect application of the Bill of Rights to cases of private evictions.

Should tenants be given more protection from gentrification-related evictions where it will leave them

destitute and homeless? Although this question was not at issue in the Supreme Court of Appeal’s

judgment in Maphango v Aengus Lifestyle Properties (Pty) Ltd. (hereinafter referred to as Maphango),9

it was stated that section 26 of the Constitution could not be used to provide security of tenure beyond

the period of lease.10 This implies that, at least in terms of once-lawful occupants, the courts are hesitant

to answer the question in the positive. The consequences of this hesitation give rise to what will be

called in this paper the gentrification dilemma.

This paper reviews existing case law and academic discussion regarding evictions that occur as a result

of gentrification. The reason for this limitation is that there would otherwise be too many factors to

consider in so short a paper. The social and economic phenomenon of gentrification also provides a

backdrop of competing rights that best illustrate the social impasse between the rights of the wealthy

and the rights of the poor – the rights of land owners and the rights of the homeless. Furthermore, as

gentrification is largely an urban phenomenon, issues relating to rural land tenure are excluded from the

discussion. However, rural land issues may be used in an indirect manner to inform the argument.

A final distinction that must be made for the purposes of this paper is that between lawful and unlawful

occupants. Essentially, lawful occupants have the express or tacit permission of the owner or person in

charge of a property occupy such property, whereas unlawful occupants do not.11 In many gentrification

cases, the occupants to be evicted were once in lawful occupation of premises through lease

agreements.12 This paper will therefore have to consider whether occupants should be treated

differently based on the lawfulness of their occupation.

1.1 Outline of argumentPart 2 of this paper will analyse the current legal context, including an analysis of the Constitution,

legislation and case law. There will be particular reference to the Blue Moonlight case. The reasoning of

the courts in that case will be interrogated and compared to the reasoning of other decisions relating to

the right to adequate housing. This will be followed by an outline of some scholarly responses regarding

the case.

Part 3 will discuss some of the issues facing the question of private provision of access to adequate

housing. This will include an analysis of the legal nature of the rights to adequate housing and the

property clause, as well as the social, economic and practical arguments for and against State provision

of housing in the context of gentrification. 9 2011 (5) SA 19 (SCA).10 [29].11 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act Act 19 of 1998 s1(xi).12 See, for example, Maphango.

7

Regardless of the outcome of the discussion in part 3, part 4 will investigate alternative solutions to the

gentrification dilemma, which might lead to a conclusion that the burden placed on the State to provide

housing is avoidable in certain circumstances. Examples from other legal systems will also be used to

illustrate the existence of alternatives.

1.2 Gentrification: brief overviewThis research paper is set in the context of gentrification, and it is therefore necessary to define

gentrification and its impact on society. Gentrification can be defined as the process whereby the

demographic makeup of an area changes due to an influx of residents of a higher social class.13 To put

it differently, it might also be defined as the displacement of an area’s inhabitants by people of higher

income. However, there are other definitions of gentrification that do not necessarily involve the

displacement of the inhabitants.14 In those cases, the area changes in other ways – such as building

and infrastructure upgrades, but stays inhabited by members of the same class.15 For the purposes of

this paper, definitions of the latter type are not relevant, since the question in this paper necessarily

involves displacement.

The causes of gentrification can sometimes be traced to the State itself. For example, in South Africa

there exists an Urban Renewal Tax Incentive which “encourages the refurbishment and construction of

both commercial and residential buildings in designated decaying inner city areas within selected

municipalities.”16 The areas listed in Cape Town include Woodstock, Salt River and Observatory, which

are areas currently undergoing the gentrification process.17 An argument that could be made in favour of

State-sponsored gentrification is that it can increase municipal rates, which in turn gives the municipality

access to larger budgets for the purposes of service provision.

However, displacement is a negative aspect of gentrification. There are several reasons, economic and

otherwise, why displacement should be limited. For example, if individuals live close to where they work,

even if it is in the informal sector, transport costs might prevent them from earning income if they were

to be relocated.18 This is bad for the economy, as it narrows the scope of production to those who can

afford the costs. Furthermore, it has a negative impact upon the ability of displaced people to afford new

accommodation. Hence, it may actually exacerbate their plight.

Displacement also has social and cultural repercussions. Gentrification often leads to the breakdown of

entire communities, along with their specific cultural heritage. This is because the dispersion of the

13 Kotze & Van der Merwe 2000 Journal of Family Ecology and Consumer Sciences 39.14 Kotze & Van der Merwe 2000 Journal of Family Ecology and Consumer Sciences 39-40.15 Kotze & Van der Merwe 2000 Journal of Family Ecology and Consumer Sciences 40.16 National Treasury 2004 Press Release.17 Visser & Kotze 2008 Urban Studies 2571; Kotze & Van der Merwe 2000 Journal of Family Ecology and Consumer Sciences 40.18 Fleming Urban Poor Evictions 14.

8

displaced communities isolates individuals both from each other and from the area specific

characteristics that formed their heritage.19

This can be illustrated by reference to the emergency housing scheme used in South Africa. Evictees

are moved to Temporary Relocation Areas (TRAs) which are often far from their place of work. For

example, in Cape Town, evictees from inner city areas such as Woodstock might be forced to relocate

to the Symphony Way TRA, which is roughly 18km away as the crow flies. The conditions in TRAs are

often worse than the conditions in which the evictees were previously living.20 Furthermore, and as their

name suggests, TRAs are temporary, and it is uncertain how long people would be able to stay there

before they are forced to find alternative accommodation.21

In summary, it can be said that gentrification has a negative impact on poor tenants and occupiers

where it forces their displacement. In order to protect these occupiers, solutions in the law should be

sought such that evictees do not find themselves homeless.

2. Current legal frameworkBefore one can begin arguing the case for or against the implementation of measures to ensure private

provision of access to adequate housing, it is necessary to understand the law as it currently stands –

what the law requires of the State and what the rights of the stakeholders are at present.

2.1 Constitution, legislation and policyThe starting point for this question is the Constitution.22 The relevant sections in the Constitution are

sections 25 and 26 – respectively the property clause and the right access to adequate housing. 23

Section 25(1) states that “no-one may be deprived of property except in terms of law of general

application, and no law may permit the arbitrary deprivation of property.”24 Section 26(1) states that

“everyone has the right to have access to adequate housing.”25 Furthermore, subsection (2) states that

“the State must take reasonable legislative and other measures, within its available resources, to

achieve the progressive realisation of this right.”26

These provisions do not conclusively and exclusively link the provision of housing to the State. A careful

analysis reveals that although it is the State’s responsibility to provide access to adequate housing,

section 26(2) does not exclude the possibility that private bodies could also be responsible. Section

19 Visser 2003 Acta Academica Supplementum 82.20 Socio-Economic Rights Institute of South Africa Resource Guide to Housing 96.21 Fleming Urban Poor Evictions 13.22 Constitution of the Republic of South Africa,1996.23 Constitution ss 25-26.24 Constitution s 25(1).25 Constitution s 26(1).26 Constitution s 26(2).

9

26(2) only requires the State to take reasonable measures to realise the right. These reasonable

measures might include imposing the same duty on private bodies through legislation. This raises the

issue of whether it is legally sound for the State to share or delegate constitutional duties with the public.

This will be dealt with later in the paper.

Section 26 is given effect by the Housing Act,27 section 9(1)(a)(i) of which states that

“(1) Every municipality must, as part of the municipality‘s process of integrated development

planning, take all reasonable and necessary steps within the framework of national and

provincial housing legislation and policy to –

(a) ensure that –

the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis;”28

In terms of this provision, it is the State’s responsibility to provide housing. However, this section does

not explicitly state that such responsibility is exclusive to the State. Another piece of legislation

associated with section 26 of the Constitution is the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act (PIE),29 particularly section 4(7). This section states that when an unlawful

occupier has been on the land for more than 6 months, the court must consider various factors before

granting an eviction order. These factors include inter alia “whether land has been made available or

can reasonably be made available by the municipality or other organ of State or another land owner.”30

This does not actually oblige the State or the land owner to provide alternative land. It merely requires

the court to consider if land can be made available before ordering an eviction. Thus, PIE does not

directly answer the question of this paper. It might, however, allow for the possibility of the private

landowner providing land to evicted occupants. The words “or another land owner” in section 4(7)

specifically illustrate this possibility.

Government’s policy on land reform is also informative of the stance that is taken by the State – that

they are the providers of land and housing to the poor and the historically disadvantaged. The White

Paper on South African Land Policy states that one of the outcomes of tenure reform policy is to provide

the poor with secure tenure to land.31 Furthermore, as per the White Paper:

“The reality is that the poor and the landless are not in a position to acquire land at

market prices without assistance from the State... In the urban situation, the poor also

27 Act 107 of 1997.28 Housing Act s 9(1)(a)(i).29 Act 19 of 1998.30 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act s 4(7).31 White Paper on South African Land Policy 1997 para 2.1.

10

depend on the State for assistance in the acquisition of land. Without a programme of

State support and targeted intervention, land reform will not be possible.”32

To summarise the analysis of legislation and policy, it seems that the legislature has not contemplated

the possibility of sharing the responsibility to provide housing or of imposing this duty on private

landowners, even in limited circumstances. Therefore, one needs to look to the decisions of the courts

for the judiciary’s stance on the matter.

2.2 Case LawThere have been several cases dealing with evictions and the relationship between sections 25 and 26

in recent years. Some of those cases are especially relevant to the loss of rental housing in the

gentrification context. They therefore provide some insight into the approach taken by the courts to the

problem of provision of access to adequate housing in that context.

2.2.1 ModderklipIn President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC)

(hereinafter referred to as Modderklip),33 400 people were displaced from their place of residence and

unlawfully occupied a piece of land owned by Modderklip Boerdery.34 The landowners applied for an

eviction order, and although it was granted, the State failed to act upon the order.35 The State eventually

refused to evict the unlawful occupants for various reasons – for example, that there were 40 000

unlawful occupants by that stage and the municipality had no place to relocate them.36 Modderklip

Boerdery then sought to force the State to evict the occupants. The Pretoria High Court held that the

occupants could not be evicted until such time as land was available, and that they could therefore

remain on the land temporarily.37 However, they confirmed that the State was obliged to provide land

and also to compensate Modderklip Boerdery for the failure to evict the occupants in the first place.38

This decision is significant as it illustrates that the courts, although willing to accept that some burden

might be placed on a land owner temporarily, firmly placed responsibility to provide access to adequate

housing on the State and did not want to place a permanent burden on the landowner. It shows that the

State is seen as the “provider” for the realisation of socio-economic rights and that this duty should not

ultimately fall to private individuals.

32 White Paper on South African Land Policy 1997 para 3.2.33 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC).34 As it is reported in Pillay 2007 Int'l J. Const. L.545.35 Modderklip [7-8].36 [7]-[8].37 [64]-[65].38 [64]-[65].

11

2.2.2 Blue MoonlightIn the Blue Moonlight case, the occupiers of a building were several households consisting of 81 adults

and five children in total. One of the children was disabled, two of the adults were pensioners and a

number of the households were headed by women, with the average income per household being a

mere R940 per month.39 In other words, this was a case of poor people living in poor conditions, with no

prospects of finding a new place in which to live, let alone buying and enjoying the use thereof as

owners.

In 2004, Blue Moonlight Properties bought the property, intending to renovate and redevelop it. In 2006,

Blue Moonlight instituted eviction proceedings against the occupiers, who opposed these proceedings

on the grounds that they had nowhere to go.40 They subsequently joined the Johannesburg Metropolitan

Municipality in the proceedings, stating that they would need alternative housing. An eviction order was

granted by the High Court in 2010. The Johannesburg Metropolitan Municipality was also ordered to

provide housing to the occupants and to pay compensation to Blue Moonlight in a similar fashion to the

Modderklip case.41

On appeal to the Supreme Court of Appeal (SCA), the decision regarding the housing policy was

upheld, the court held that the Emergency Housing Policy of the Johannesburg Metropolitan

Municipality was unconstitutional.42 The reason for this finding was that the Policy infringed upon the

occupants’ rights to equality and human dignity. These rights would be infringed if emergency housing

policy did not cater for people evicted for reasons other than that their building was unsafe to inhabit.43

The compensation aspect of the High Court decision was overturned.44 The court stated that in this

case, Blue Moonlight knew about the occupants and could easily have obtained an eviction order, which

they eventually did. In Modderklip, on the other hand, the State ignored an eviction order that had

already been granted, and this was the reason for the compensation. The compensation was not for

letting people stay on the land, but was rather damages for the State’s error in not evicting them when

they were ordered to do so.45

In the Constitutional Court, the decision of the SCA was confirmed.46 A significant feature in the

Constitutional Court judgment is the interplay between sections 25(1) and 26. Unlawful occupation is

seen as a deprivation of property.47 Therefore, the granting of an eviction order is a balance between 39 Blue Moonlight [6].40 [11].41 [12].42 [13]43 [13].44 [13].45 [70]-[72].46 [102].47 [37].

12

recognising the right to adequate housing (for the occupants) and right against deprivation of property

(for the landlord). The Constitutional Court seems to be taking a very cautious approach and not

allowing for reform or development of the relationship between the two rights. Quoting Port Elizabeth Municipality v Various Occupiers, 48 for instance, it is stated that:

“[T]he court is required ‘to balance out and reconcile the opposed claims in as just a

manner as possible, taking account of all of the interests involved and the specific

factors relevant in each particular case.’”49

Furthermore, the court never considers whether an infringement on the right not to be deprived of

property could be avoided while still fully realising the right to access to adequate housing. They are

instead seen as two competing rights that cannot be fully realised at the same time in such

circumstances. This case is significant as it is clearly a case of gentrification, and an opportunity to

consider broader arguments instead of accepting the status quo. The opportunity was either not seen or

not considered by the courts, and illustrates the reluctance to consider private responsibility.

2.2.3 Scholarly responsesSeveral responses to the various decisions of the courts in Blue Moonlight have arisen. For example,

Kruuse remarks, in response to the Constitutional Court judgment and the preceding judgment in the

Supreme Court of Appeal,50 that “courts have avoided the difficulty of invading traditional private law

landlord rights by shifting their focus from the effect of the anti-eviction procedure on the landowner, to

the State as the provider of access to housing.”51 In spite of this statement, Kruuse avoids the same

issue in her own discussion on the realisation of socio-economic rights in the context of Blue Moonlight, and instead focuses on the State as provider in the same way that the courts have done. 52 However, it

is implied that under the current legal framework, the possibility of the private landowner as provider of

housing is an unnecessary question. Kruuse states that where it can be shown that the State has the

available resources, which they often do, they will have to realise the rights.53 All that is required is proof

that the resources exist. The focus would then clearly remain on the State as is provided for under the

current framework.

Wilson takes a different approach to that of the courts.54 He argues that evictions which result in

homelessness should be dealt with differently. In such cases, the right to a home, as he calls it, should

48 [2004] ZACC 7.49 Blue Moonlight [36] (footnotes omitted).50 Kruuse 2011 SALJ 620.51 Kruuse 2011 SALJ 622.52 Kruuse 2011 SALJ.53 Kruuse 2011 SALJ 630.54 Wilson 2009 SALJ.

13

limit the right against deprivation.55 This is a shift from “competing rights” and instead shows that one

right should always trump another in specific circumstances, even if it is only temporarily. This would

operate where the unlawful occupation is the occupant’s only access to a home.56 This does not mean

that the right of ownership disappears. It is always there, but it might be suspended or limited

necessarily to facilitate the right to access to housing. In doing so, a “new normality” would be created:

what is regarded as a normal arrangement in terms of the existence and enforceability of property rights

should change.57

Maass and Van der Walt argue that the courts are given the impossible task of balancing the rights in

sections 25 and 26.58 This is further demonstrated by the fact that they have only so far dealt with

private responsibility on the level of temporary accommodation by private landowners for the purposes

of relocation by the State.59 Furthermore, they argue that:

“These cases illustrate the lack of protection that tenants enjoy in the private-law

landlord-tenant framework, especially in the case of weak and marginalised tenants

whose tenure is insecure because of the discriminatory laws and practices of

apartheid.”60

These responses raise an important point – that to affect any kind of change to the realisation of rights,

the competition of the rights in sections 25 and 26 must be re-imagined as a sequence of compromises

between what is best for the individuals and what is necessary for the realisation of the rights in the

broader sense. The “normality assumption” of property law – as Wilson refers to the understanding of

the status quo of the relationship between the law and the people61 – must not be so rigid so as to

prevent the realisation of socio-economic rights, or at least to ponder different methods to those which

the law currently allows. Yet, as it stands, the notion that landownership should not be deprived too

readily is too deeply entrenched to allow a debate about the different ways in which housing can be

provided to the homeless and poverty-stricken. Ultimately, the concept of land-ownership needs to be

seen as flexible and negotiable, while at the same time being certain enough to maintain some

coherence within the legal system.

55 Wilson 2009 SALJ 282.56 Wilson 2009 SALJ 282.57 Wilson 2009 SALJ 270.58 Maass & Van Der Walt 2011 SALJ 439.59 Maass & Van Der Walt 2011 SALJ 440.60 Maass & Van Der Walt 2011 SALJ 439-440.61 Wilson 2009 SALJ 270.

14

3. Issues with private responsibilityThere are problems with the notion that private landowners must provide access to adequate housing to

those they wish to evict. These problems take various forms, including potential unconstitutionality,

issues of practicality, and policy reasons, all dealt with in this part.

3.1 Sections 25 and 26As has been mentioned, one of the stumbling blocks to private responsibility is section 25(1) of the

Constitution. It has already been stated that there is competition between various rights as well as

various right holders. It has also been shown that section 25 has received a great amount of attention

and protection in various court decisions. The question is whether section 25 is too close to being

absolute in the eyes of the legal system to allow it to be limited to such an extent.

Hypothetically, if the courts were asked by the State to order a landowner to provide housing for the

occupiers the landowner seeks to evict, the courts would follow the tests laid down in First National Bank.62 Currie and De Waal phrased the test as follows.63 The first question is whether the law or

conduct affects property as understood under section 25. The second question is whether there has

been a deprivation of such property by the law or conduct. If there is a deprivation, does it conform to

section 25(1) of the Constitution? If it does not, then the next question is whether it is still justifiable

under section 36 of the Constitution. There are a further three questions if the law or conduct in question

amounts to an expropriation. The first is whether the conduct amounts to an expropriation in terms of

section 25(2), and if so, if it complies with the requirements of section 25(2)(a) and (b). Finally, if it does

not, then it would have to comply with the limitation clause in section 36 in order to be constitutionally

valid.64

There are some practical issues that arise at this stage of the analysis. One might ask what form the

duty on private landowners to provide alternative housing could take – in other words, in what way the

landowners would have to provide access to adequate housing. There are a number of possible

scenarios. For example, a landowner might want to evict, for whatever reason, some unlawful

occupants that are occupying a property that he or she owns. If the landowner were to be held

responsible for the provision of housing for the occupants, the eviction order might be refused, either on

the grounds that he or she has to allow the occupants to stay on the property or that he or she would

have to find some other place for the occupants to stay temporarily or permanently. If it is the former

(that the occupiers stay where they are), it is understandable that this would lead to controversy as it

potentially involves a deprivation of his real rights in the property. If it is the latter, the potential limitation 62 First National Bank of South Africa Ltd t/a Wesbank v The Commissioner for South African Revenue Services 2002 (4) SA 768 (CC).63 Currie & De Waal Bill of Rights Handbook 535.64 Currie & De Waal Bill of Rights Handbook 535.

15

on the right against deprivation of property is less clear. For the purposes of this paper, it might be

easier to limit the discussion to the first possibility for now. Therefore, one would have to perform an

analysis on the private duty to provide access to adequate housing through having to temporarily or

permanently house unlawful occupants, and determine whether this is constitutionally permissible in

South Africa.

The first step is to enquire whether this duty relates to property as it is understood in section 25. It

seems obvious that it does. Property in terms of section 25 refers to the “set of legal rules governing the

relationship between individuals and physical property – what the common law terms property rights.”65

By not allowing the eviction of unlawful occupants, and forcing the landowner to accommodate them,

the State is depriving the landowner of the rights of use and occupation, for example. This also answers

the next step of the enquiry – whether there has been a deprivation in terms of section 25. This is

because deprivation refers to a “substantial interference or limitation that goes beyond the normal

restrictions on property use or enjoyment found in an open and democratic society.”66 Currie and De

Waal disagree with this interpretation, stating that “normal” is hard to define.67 In any event, one of the

purposes of section 25 is to challenge even those so-called normal interferences.68 Hence, deprivation

might rather be seen as a substantial interference or limitation on property use or enjoyment.

The deprivation must furthermore be consistent with the requirements of section 25(1) in that it must be

in terms of a law of general application.69 A law of general application refers to law that is to be applied

equally to everyone.70 For the purposes of the proposed rule contained in this paper, it would mean that

such a rule would have to be specific about the category of people to which it would apply, how it would

apply and how its application would be restricted. This would ensure certain and fair application. Section

25 also precludes arbitrary application. Hence the law must be procedurally fair and must not be

arbitrary in its substance.71

The enquiry into the expropriation aspect of the test in First National Bank is necessary, as the provision

of adequate housing by private landowners might be deemed expropriation in certain circumstances.

Expropriation is the compulsory acquisition of property by the State or the compulsory transfer of

property to a third party, balanced on the payment of compensation to the previous owner. 72 This would

only be the case in this paper’s context if the private landowner was obliged to hand actual ownership of

the property to the occupants or the state. If this was the case, then it could amount to expropriation.

65 Currie & De Waal Bill of Rights Handbook 537.66 Currie & De Waal Bill of Rights Handbook 541.67 Currie & De Waal Bill of Rights Handbook 541.68 Currie & De Waal Bill of Rights Handbook 541.69 Currie & De Waal Bill of Rights Handbook 542.70 Currie & De Waal Bill of Rights Handbook 542.71 Currie & De Waal Bill of Rights Handbook 544-545.72 Van der Merwe LAWSA 27 para 356.

16

Section 25(2) requires that the expropriation be for a public purpose or in the public interest, and that

compensation be paid, such compensation to be determined by the parties in agreement, or by a court.

As for the public purpose aspect, it seems obvious that the public purpose is the realisation of the rights

contained in section 26. It is in the public interest that the right to access to adequate housing is fulfilled,

and in terms of section 25(4), land reform and equitable access to natural resources is included in public

interest.

It might yet be shown that for policy reasons, the State should not be able to hold the landowner

responsible for the provision of housing. One argument is that in blurring the line between the State as

the duty-bearer and the landowner as the right-holder, such a shift in the paradigm of realisation of

socio-economic rights would have an effect in other areas of the law. For example, it could have far

reaching consequences for the right to education or the right to health – private stakeholders in those

industries might also be accountable not only to their clients, but to the public at large. This is perhaps

one of the reasons for the caution and reluctance that has been seen in past court decisions when

determining the balance between the rights contained in sections 25 and 26. Otherwise, legal

uncertainty would arise, as the socio-economic rights in the Constitution would be completely

horizontally applicable. It is submitted that this would be an untenable situation in a society where so

many South Africans do not have housing.73

Furthermore, there is an argument that the State should not be able to evade responsibility for the

failure to provide alternative housing by shifting it to the landowner. In AAA Investments (Pty) Ltd v Micro Finance Regulatory Council,74 Yacoob J stated that “government cannot be released from its

human rights and rule of law obligations simply because it employs the strategy of delegating its

functions to another entity.”75 Although this statement was made in the context of privatization of public

functions, it could also apply to the delegation of such public functions to the private sector. If such a

situation were to be allowed, there might be little incentive for the State to take steps to provide access

to adequate housing at all. Instead, it is argued that if the State were able to shift the responsibility, it

should only be allowed to do so in cases where it is reasonable. This would be in line with the

reasonableness criterion developed in Grootboom.76

Reasonableness in this instance might be informed by factors including, but not limited to, the current

ability of the State to provide housing, the length of time for which the landowner would have to provide

alternative housing and the utility of having the landowner provide housing in place of the State. In most

cases the only time that landowners could be obliged to provide the evictees with adequate housing is if

73 Burgoyne Factors Affecting Housing Delivery 17.74 2007 (1) SA 343.75 AAA Investments [40].76 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).

17

they are commercial property developers with sufficient resources at their disposal. This presents a few

problems dealt with under parts 3.2 and 3.3 of this paper.

Conversely, where it is practical, there is nothing especially wrong with imposing the duty to provide

access to adequate housing on private landowners to a certain extent, even beyond the duty not to

deprive a person of their housing. It is the extent, rather than the imposition itself, that presents

problems. Therefore, the private provision of access to adequate housing under certain circumstances

would probably be found to be constitutionally permissible if examined extensively by the courts.

3.2 Economic problemsThere are other problems with the notion of private responsibility which are not of a legal nature. One is

the state of the property market. Such a change in the direction of the law could see a collapse in the

market. Property values would be lowered because investors would not see property as having the

same commercial value. It would depend on the extent to which a landowner could be made

responsible for the provision of access to adequate housing, as well as on the existence of limitations of

the applicability of such a rule. If private responsibility could only be imposed in certain, narrow

circumstances, then investors would merely take those circumstances into account in risk assessments,

and perhaps not be too concerned. The property market is a significant part of the economy,77 and by

creating uncertainty, the State would likely discourage investors. However, according to Currie and De

Waal, the right against deprivation of property would not cover this “economic loss” because it does not

fall under the definition of property for the purposes of section 25.78

On the other hand, the economic benefits of securing access to adequate housing are significant. This

is perhaps one of the reasons for the very existence of section 26. Housing is seen as an economic

multiplier, since it not only provides the owner with the opportunity to obtain socio-economic utilities

such as water and electricity, but it also leads to the creation of jobs through the construction of the

houses themselves.79

3.3 Practical issuesThere are also practical issues surrounding the private provision of access to adequate housing. It was

stated earlier that the two possible outcomes of private responsibility were that the landowner would

either have to let the occupants remain on the property, or find them reasonable alternative

accommodation. If it is the latter, these practical issues raise important questions about the power of

77 Statistics South Africa 2012 Gross Domestic Product 10. However, in that report, the property and rental market is included in the category “Finance, real estate and business services,” and although that grouping contributed 19% to annual GDP in 2011, it is unknown exactly how much of that was due to real estate itself.78 Currie and De Waal Bill of Rights Handbook 537.79 Burgoyne Factors Affecting Housing Delivery 16.

18

private landowners to actually facilitate the realisation of the right to adequate housing, as well as the

efficacy of them doing so. For example, one might ask where the courts would allow the occupants to

be relocated, or how the landowner would be able to find and afford new land.

To illustrate the potential for impracticality, one might look again at the Modderklip case, where 40 000

people were staying on the land at the time. If Modderklip Boerdery had been under a duty to relocate

them to alternative housing, they would need to find new land and then also ensure the occupants’

actual relocation there. On the facts, Modderklip Boerdery was quoted R18 million to evict the

occupants, which was more than the value of the property itself.80 If Modderklip were responsible for

housing the occupants, it could have cost them more than that, and without the potential for any

compensation from the State. This means that if the right to access to adequate housing could be

applied to landowners, a special list of criteria or factors to be taken into account when determining such

cases would have to be created, such that only those with the resources to provide housing could

potentially be liable, thereby eliminating the impractical cases.

Furthermore, there exists the potential for clashes between the co-ordinated implementation of housing

policy by the State and the ad hoc alternative housing provision carried out by landowners. One might

also be mindful of the interpretation given to the right to access to adequate housing by the court in

Grootboom:

“Housing entails more than bricks and mortar. It requires adequate land, appropriate

services such as the provision of water and the removal of sewage and the financing of

all of these, including the building of the house itself... A right to access to adequate

housing also suggests that it is not only the State who is responsible for the provision of

houses, but that other agents within our society, including individuals themselves, must

be enabled by legislative and other measures to provide housing.”81

It is unclear what the court meant by “other agents within society”. It could merely refer to the

outsourcing of the provision of housing to development companies, or it could even refer to the

provision of housing not being restricted to the State alone. However, it does not seem to be the case

that the court intended to impose a duty on private landowners. Rather, they seem to have left open the

possibility for the voluntary provision of housing. In any event, the provision of access to adequate

housing is not merely giving people land and a house – it must be part of a broader realisation of socio-

economic rights. Private landowners alone cannot possibly do that efficiently, as this would require

proper planning and co-ordination with the existing infrastructure.

80 Wilson 2009 SALJ 276.81Grootboom para 97.

19

Finally, there is a concern that if landowners had to secure access to adequate housing for unlawful

occupants on their property, this would be exploited by homeless people in need of housing. Buildings

would be invaded simply because the unlawful occupants know that the landowners would have to find

some alternative housing solution for the occupants if the landowners wanted to evict them. This would

defeat the purpose of a rule aimed at protecting the rights of bona fide and endangered occupants.82

Bona fide occupants in this case might still be unlawful, but would be in good faith in the sense that their

intention is not to force the landowner to provide them with housing. Hence, if tenant X had entered into

a lease agreement with landowner Y, had paid a deposit and perhaps the first month’s rent, but then

refused to pay any further rent without justifiable grounds, then there would be a suspicion that X had

entered into the agreement with the sole intention of gaining access to adequate housing in bad faith.

One could argue that this is unfair on the landowner, since their investment is being devalued or

deprived through the ulterior motives of the tenant.

Whether an occupant was bona fide could be determined by a list of factors, including: the duration of

their occupancy, the lawfulness of their occupancy during their occupancy, their ability to afford rental

on the premises, the conduct of the landowner with respect to the property, and any other factor which

the court may deem to be relevant. It is therefore submitted that if the right to access to adequate

housing were to be made horizontal in such cases, it could only occur when the occupant was bona fide (in the sense established above) and reasonably in need of access to adequate housing, and when the

landowner was reasonably able to provide such access to adequate housing.

In concluding this point, it can be said that there is some serious doubt as to the ability of private

landowners to provide access to adequate housing to those whom they seek to evict from their property.

Furthermore, there exists the possibility for exploitation by unlawful occupiers. Taking these factors into

account, it is submitted that there is no reasonable prospect for the horizontal application of the right to

access to adequate housing. If a rule was established to the effect that private landowners are

responsible for the provision of access to adequate housing, such a rule would have to be very limited in

its application, and cautiously applied on a case-by-case basis.

4. A third way?In the Maphango case, Aengus Lifestyle Properties purchased a building, which at that time was

inhabited by once-lawful tenants.83 These tenants then had their leases cancelled – even though the

tenure period had already expired – but were offered new leases at a substantially higher rate. 84 The

reason for the increased rate was to allow Aengus Lifestyle Properties to renovate the building and

82 Endangered in the sense that they are in danger of becoming homeless, because they can no longer afford to stay on the property.83 Maphango [1].84 [4]–[6].

20

receive a return on their investment.85 However, the tenants were not in a position to afford the increase,

and therefore did not agree to the new leases. Instead, they simply remained in occupation. 86 Aengus

Lifestyle Properties eventually succeeded in obtaining an eviction order against the occupants.87 The

occupants argued, inter alia, that the act of cancellation was unconstitutional. On appeal to the SCA, the

court significantly refused to apply section 26 to the act of cancellation, saying that the Constitution

could not be used to extend their tenure beyond the stipulated time period.88 That case has since been

heard on appeal at the Constitutional Court, which subsequently referred it back to the Rental Housing

Tribunal for arguments on unfair practice to be heard, leaving the constitutional question open.89 The

parties were given leave to return to the Constitutional Court if the Rental Housing Tribunal hearings

failed. At the time of writing, no outcome had yet been reached.

This case is an illustration of the mechanisms and effects of gentrification, as it is one of the ways in

which gentrification works in the real estate market. The landowner sought to improve the property, and

in so doing the inhabitants could no longer afford to stay there, meaning that they would be displaced

and replaced by a wealthier class of people. The fact that the Constitution could not be used to prevent

this from happening, as was the case in the SCA judgment in Maphango, shows that the current

jurisprudence used by the court might be of a liberal nature, with the result that the right to access to

adequate housing is not given enough protection by the courts or the law. Rather, the occupiers’ rights

give way to the economic interests of the landowners.

It was earlier considered whether, in the current context, it was possible to realise the right to adequate

housing without infringing on the right against deprivation of property, or vice versa. As has been

shown, the courts have clearly set the scene as a battlefield where the rights in section 25 and 26

compete, and some have argued that that perspective needs to change. Perhaps a different direction

would be to argue that there are certain circumstances where the right to access to adequate housing

and the right against deprivation of property never have to compete in order for both to be realised. An

example of this middle ground would be the implementation of corporate social responsibility (CSR)

requirements or incentives to provide housing to the impoverished. The City of Cape Town, for example,

has already identified CSR as a source of local economic development,90 but it does not appear that

they have seen the opportunity for specific CSR activism in the context of gentrification.

The Maphango case involved one of the mechanisms designed to prevent exploitation by either lessee

or lessor – the Rental Housing Act91 and the provincial Rental Housing Tribunals (RHTs) that are to be

85 [11].86 [6].87 [1].88 [28]-[29].89 [2012] ZACC 2.90 City of Cape Town. 91 Act 50 of 1999.

21

established as provided by the Act.92 Where the lessee alleges an unfair practice on the part of the

lessor, which for the purposes of this paper may be deemed the landowner, such dispute may be

submitted to the RHT for resolution.93 An unfair practice is defined as either a contravention of the Act

itself, or any “practice unreasonably prejudicing the rights or interests of a tenant or a landlord.”94 If the

court finds that there is an unfair practice, section 13(4) of the Rental Housing Act states that the court

may:

(a) rule that any person must comply with a provision of this Act;

(b) where it would appear that the provisions of any law have been or are being

contravened, refer such matter for an investigation to the relevant competent body or

local authority;

(c) make any other ruling that is just and fair to terminate any unfair practice, including,

without detracting from the generality of the aforegoing, a ruling to discontinue-

(i) overcrowding;

(ii) unacceptable living conditions;

(iii) exploitative rentals; or

(iv) lack of maintenance.95

These are existing measures within South African law. However, in terms of application, it is not clear if

it will apply in these circumstances. As has been stated, the Constitutional Court referred the parties in

Maphango to the RHT for hearing on the matter regarding the cancellation of the leases for the purpose

of renegotiation at a substantially higher price.96 However, there has since been no resolution to the

matter, and hence it cannot be stated authoritatively that cancellation of the lease in such circumstances

is an unfair practice.97 On the other hand, should it be held that it did constitute an unfair practice, it

would show that the Rental Housing Tribunals can give evictees some relief where relevant. However,

the scope for application of the Rental Housing Act is much narrower than would be required from an

ideal solution in the context of this paper. It is limited to cases where there is a lease and where an

unfair practice has occurred. Furthermore, section 13(10) states that, in spite of the moratorium

imposed on eviction proceedings provided in section 13(9), landowners may approach the court for

urgent relief.98

92 Rental Housing Act s 7.93 Rental Housing Act s 13(1).94 Rental Housing Act s 1.95 Rental Housing Act s 13(4).96 Maphango [67]-[68].97 However, the complaint was at least lodged with the Gauteng Rental Housing Tribunal in May 2012. See Socio-Economic Rights Institute of South Africa “Maphango and Others v Aengus Lifestyle Properties“.98 Rental Housing Act, s 13(10).

22

There are tax incentive programs in the US and Australia which are designed to improve private

engagement with the provision of public housing.99 This could form part of a broad public-private

partnership that would allow for a co-ordinated strategy for alternative housing and also avert the need

for eviction proceedings and displacement. It could be limited to specific industries – such as the

property and rental markets – and apply on a voluntary basis. This would also eliminate some of the

practical issues such as efficacy and costs. Furthermore, voluntary programs of this nature allow for the

realisation of one of the goals of land reform, which is redistribution of land ownership, as the interests

of the private providers in such cases are not always based on the retention of the land asset, but rather

on the incentive. Therefore, the participants in such programs would likely be more willing to allow

ownership of the land to pass into the hands of the recipients.

Blessing and Gilmour mention that an added benefit to tax incentives is that they allow expenditure on

projects without increasing visible public spending, which can be politically sensitive in times of fiscal

restraint.100 However, this is not necessarily the case. Political sensitivity in the South African context

might rather require that public expenditure on provision of housing be visible to a population that

expects it. On the other hand, to the end user, the politics of the matter might mean nothing at all as

long as they receive the housing.

As was mentioned in the introduction,101 the State is already making use of tax incentives to encourage

urban renewal, which in turn leads to gentrification. The Urban Renewal Tax Incentive allows for owners

of buildings to deduct certain amounts from their total taxable income.102 For “owner-builders” making

improvements to an existing building, the deduction is 20% of the cost of improvement, and this can be

done for a period of five years. 103In the case of new buildings, which include extensions and additions

to existing buildings, the deduction is 20% of the construction costs for the first year, and 5% per annum

for the next seventeen years.104

Furthermore, there are also incentives for the “owner-first purchaser,” which is the first party to purchase

the property after it has been constructed or improved by a developer.105 In the case of improvements,

the first purchaser is deemed to have incurred 30% of the purchase price as an expense, and may

deduct 20% of that deemed expense over a period of five years.106 For new buildings, the first purchaser

may deduct from their taxable income 20% of the deemed expense, which is 55% of the purchase price

in such cases.107 For the next sixteen years, the owner-first purchaser may furthermore deduct 5% of

99 Blessing and Gilmour 2011 International Journal of Housing Policy 455.100 Blessing and Gilmour 2011 International Journal of Housing Policy 455.101 See part 1.2 above.102 National Treasury Urban Renewal Tax Incentive.103 National Treasury Urban Renewal Tax Incentive 4.104 National Treasury Urban Renewal Tax Incentive 5.105 National Treasury Urban Renewal Tax Incentive 5.106 National Treasury Urban Renewal Tax Incentive 5.107 National Treasury Urban Renewal Tax Incentive 5.

23

the balance of the selling price – in other words, 5% of the remaining 45% – per year.108 The effect of

this is that the owner’s total taxable income is reduced, and they therefore pay less tax.

These incentives are only applicable in certain circumstances: the building must be in an Urban

Development Zone, it must be the improvement or construction of an entire building (or at least 1000

square meters thereof), and the building must be used for the purposes of some trade. 109 This trade can

be rental, commercial, industrial or otherwise – essentially any sort of business undertaking.

With such wide scope for application, and such great benefit to the eligible owner, the tax incentive

clearly indicates the State’s positive approach towards urban renewal, of which gentrification seems an

inevitable consequence. The approach is positive in the sense that the State is promoting it. It is

submitted that this Urban Renewal Tax Incentive should be adjusted, such that it further requires that

the renewal includes plans for the provision of access to adequate housing for those it affects. To

further define those who are affected, it would be those who are in lawful occupation of the property

concerned – through some lease agreement, for example – and who will be unable to continue their

occupation as a result of the renewal. This could occur either through an increase in rent imposed by

the owner, trying to gain some returns on their investment, or through a cancellation of the lease by the

owner in anticipation of such inability to pay, regardless of the veracity of such anticipation.

Such a change in policy would bring the Urban Renewal Tax Incentive in line with section 2 of the

Rental Housing Act. Section 2(1)(a)(ii) provides that Government must promote a stable, growing

market that progressively addresses the need for affordable rental housing among the previously

disadvantaged and the poor by introducing measures to encourage investment in urban and rural areas

needing “revitalisation and resuscitation”. These measures are further refined in section 2(2), which

states that “measures introduced in terms of subsection (1) must... redress and inhibit urban

fragmentation or sprawl.” It is submitted that if the existing Urban Renewal Tax Incentive is in

contravention of section 2, and the alteration suggested above is a necessary and reasonable method

of correcting it.

Bryant and McGee110 discuss the effects of gentrification in the United States of America, particularly in

terms of condominium conversions, which occur in a similar manner to the building renovations seen in

Blue Moonlight and Maphango. They identify methods which lawmakers in the United States have used

to combat the negative effects of gentrification.111 These include moratoriums on condominium

conversions, balancing the conversion of condominiums with the construction of new housing, requiring

108 National Treasury Urban Renewal Tax Incentive 6.109 National Treasury Urban Renewal Tax Incentive 2-3. There is also the formal requirement of a certificate of occupancy and certification that the building is indeed situated in an urban development zone.110 Bryant & McGee 1983 Wash. U. J. Urb. & Contemp. L.111 Bryant & McGee 1983 Wash. U. J. Urb. & Contemp. L. 79.

24

low- and middle-income housing as part of the conversion, tenant participation and tenant relocation

assistance.112 These might all be viable alternatives to a system of eviction-forced displacement and

landlessness that South Africa currently experiences. Furthermore, they do not deprive landowners of

their rights to property unnecessarily. Rather, the measures keep intact the current balance of rights and

help realise the right to access to adequate housing at the same time.

Finally, Marcuse113 suggests that special zoning policies be put in place to prevent gentrification or

development that would displace the original inhabitants.114 Although his discussion related to New

York, the context was the displacement of tenants due to gentrification, which is relevant to the question

in this paper. The State could identify several categories of development zones, each carrying a

different level of freedom for the landowner in terms of development of buildings.115 The zones that

would be most affected by gentrification – by having many residents displaced – would be most limited.

In essence, this is a question of planning and how the municipality should temper the gentrification trend

according to local circumstances and needs.116

The ideal solution might be one or a combination of the above suggestions. This would be for the

legislature to decide. It is possible that some of these measures are already in place. However, they are

all policies worth of debate, since they all have the aim of protecting the poor and desperate. Since the

solutions all avoid the conflict between the rights to access to adequate housing and the property

clause, they demonstrate that it is possible to fulfil the rights in parallel with each other. It is therefore

concluded that the legislature should be looking for, and adopting, alternative solutions to gentrification-

induced homelessness.

112 Bryant & McGee 1983 Wash. U. J. Urb. & Contemp. L. 80-81.113 Marcuse 1985 Wash. U. J. Urb. & Contemp. L.114 Marcuse 1985 Wash. U. J. Urb. & Contemp. L. 231-234. 115 Marcuse 1985 Wash. U. J. Urb. & Contemp. L. 232-233. 116 Marcuse 1985 Wash. U. J. Urb. & Contemp. L. 234.

25

5. ConclusionThis paper has shown that the provision of adequate housing by private landowners to unlawful

occupants of their property can be implemented under certain, limited circumstances. These

circumstances would have to be limited, and the actual provision would have to be voluntary, with some

benefit to the landowner for there to be buy-in by the private sector. Furthermore, because of the

competition between the rights against deprivation of property and to access to adequate housing, and

the legal impasse that this has created, further solutions to accelerate access to adequate housing in

this context would have to be creative. Policy-makers and the courts would have to adopt a new

perspective to break away from the normality assumption that exists in the current legal framework. In

order to do this, there needs to be a shift in the balance between the rights of landowners and the rights

of the desperate homeless.

To achieve the realisation of socio-economic rights, the State, with all its resources, must ultimately be

responsible. Therefore, the implementation of measures to provide access to adequate housing must be

seen as a measure taken by the State, and not as a scheme to ensure that the State can shift

responsibility for its failures to private landowners. If future policy is implemented with this in mind, then

whether the measure is expropriation- or incentive-based, the various arguments against private

provision of housing cannot stand.

26

Bibliography

Literature

Printed

Blessing A & Gilmour T “The Invisible Hand? Using Tax Credits to Encourage Institutional Investment in Social Housing” 2011 International Journal of Housing Policy 453-468.

Bryant DC & McGee HW “Gentrification and the Law: Combatting Urban Displacement” 1983 Wash. U. J. Urb. & Contemp. L. 43-144.

Burgoyne M Factors Affecting Housing Delivery in South Africa: A Case Study of the Fisantekraal Housing Development Project, Western Cape Masters in Community and Development thesis Stellenbosch (2008).

Chenwi L “Putting Flesh on the Skeleton: South African Judicial Enforcement of the Right to Adequate Housing of Those Subject to Evictions” 2008 Hum. Rts. L. Rev. 105-137.

Cross C, Seager J, Erasmus J, Ward C & O’Donovan M “Skeletons at the feast: A review of street homelessness in South Africa and other world regions” 2010 Development South Africa 5-20.

Currie I & De Waal J Bill of Rights Handbook (2005) Juta Cape Town.Department of Land Affairs White Paper on South African Land Policy (1997).Dubin J “From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income

Communities of Color” 1993 Minn. L. Rev. 739-801.Fleming A Making a Place for the Rich? Urban Poor Evictions and Gentrification in Woodstock, South

Africa MSc thesis London School of Economics and Politics (2011).Hedin K, Clark E, Lundholm E & Malmberg G “Neoliberalization of Housing in Sweden: Gentrification,

Filtering, and Social Polarization” 2012 Annals of the Association of American Geographers 443-463.

Kotze NJ & Van der Merwe IJ “Neighbourhood renewal in Cape Town’s inner city: Is it gentrification?” 2000 Journal of Family Ecology and Consumer Sciences 29-46.

Kruuse H ‘”The art of the possible’ in realising socio-economic rights: The SCA decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd” 2011SALJ 620-632.

Maass SM and Van der Walt AJ “The case in favour of substantive tenure reform in the landlord-tenantframework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight” 2011 SALJ 436-451.

Marcuse P “Gentrification, abandonment, and displacement: Connections, causes and policy responses in New York City” 1985 Wash. U. J. Urb. & Contemp. L.195-240.

Pillay A “South Africa: Access to Land and Housing” 2007 Int'l J. Const. L. 544-566.Van der Merwe CG “Things” in LAWSA 27 (2001) para 356.Visser G “Gentrification: prospects for urban South African society?” 2003 Acta Academica

Supplementum 79-104.

27

Visser G & Kotze N “The State and New-build Gentrification in Central Cape Town, South Africa” 2008 Urban Studies 2565-2593.

Wilson S “Breaking the tie: Evictions from private land, homelessness and a new normality” 2009 SALJ 270-290.

Electronic

Centre on Housing Rights and Evictions Any Room for the Poor? Forced Evictions in Johannesburg, South Africa http://www.escr-net.org/usr_doc/COHRE_Johannesburg_FFM_high_res.pdf (accessed on 24.04.2012).

City of Cape Town Business Plan for Urban Renewal Programme: Khayelitsha and Mitchell’s Plain http://www.capetown.gov.za/en/urbanrenewal/Documents/URP_Business_Plan_-_PDF_682007152628_.pdf (accessed on 10.07.2012)

National Treasury Press Release – Urban Renewal Tax Incentive Launched in Johannesburg and CapeTown http://www.treasury.gov.za/comm_media/press/2004/2004101401.pdf (accessed on 10.07.2012).

National Treasury Urban Renewal Tax Incentive - Guide for Investors (2006)http://mfma.treasury.gov.za/MFMA/Urban%20Development%20Zones/Urban%20Renewal%20Tax%20Incentive%20-%20Guide%20for%20Investors.pdf (accessed on 10.07.2012).

Socio-Economic Rights Institute of South Africa A Resource Guide to Housing in South Africa 1994-2010: Legislation, Policy, Programmes and Practice.http://www.seri-sa.org/images/stories/SERI_Housing_Resource_Guide_Feb11.pdf (accessed on 10.07.2012)

Socio-economic Rights Institute of South Africa Maphango and Others v Aengus Lifestyle Properties (‘Maphango’)http://www.seri-sa.org/index.php?option=com_content&view=article&id=73:maphango-v-aengus-lifestyle-properties&catid=19 (accessed on 19.09.2012)

Statistics South Africa Gross Domestic Product (GDP), 1st Quarter 2012 http://www.statssa.gov.za/publications/P0441/P04411stQuarter2012.pdf (accessed on 11.07.2012).

Primary Sources

Cases

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343.City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011] ZACC

33.First National Bank of South Africa Ltd t/a Wesbank v The Commissioner for South African Revenue

Services 2002 (4) SA 768 (CC).Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd [2012] ZACC 2.Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2011 (5) SA 19 (SCA).

28

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7.President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC).

Legislation

Constitution of the Republic of South Africa, 1996.Housing Act 107 of 1997.Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.