Developing the law of joinder in the context of evictions of people from their homes

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

Developing the law of joinder in the context of evictions of people from their homes

Authors Gustav Muller, Sandra Liebenberg

ISSN: 1996-2126
Affiliations: Lecturer, Faculty of Law, Rhodes University; Professor and HF Oppenheimer Chair in Human Rights Law, Faculty of Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 554 – 570

Abstract

There are circumstances in which it is essential to join a party because of the interest that party has in the matter. The underlying principle is that interested parties should be afforded an opportunity to be heard in matters in which it has a direct and substantial interest. Applications for the eviction of unlawful occupiers from private land in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) has been framed in a particular manner since 2004 that created a ‘stalemate’ between the rights of private owners and the rights of unlawful occupiers. The only way to move beyond the stalemate is to join the municipality in whose jurisdiction the land falls. However, the high courts, in a series of six reported judgments, have not adopted a uniform approach in their reasoning for this joinder. They have relied on a combination of arguments founded on the cumulative force of the notice requirement in s 4(2) of PIE, the requirement to attempt mediation in s 7(1) of PIE, and finally, the constitutional and statutory obligations of municipalities. The overall impact of this reasoning is not convincing. This article revisits the legal framework that the Supreme Court of Appeal and the Constitutional Court have employed in the five judgments it handed down on the issue of joinder in PIE eviction cases. In so doing this article identities more clearly the constitutive requirements for necessary joinder within a constitutional matrix. The directness of the interest will be explored with reference to the statutory obligations that flow from the Housing Act 107 of 1997 and the Local Government: Municipal Systems Act 32 of 2000. The substantial nature of the interest will be explored with reference to the filing of reports flowing from the joinder.

Sale in execution of mortgaged homes may not result in arbitrary deprivation of property

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

Sale in execution of mortgaged homes may not result in arbitrary deprivation of property

Authors Reghard Brits

ISSN: 1996-2126
Affiliations: Postdoctoral Fellow, South African Research Chair in Property Law, Stellenbosch University
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 536 – 553

Abstract

The sale in execution of immovable residential property amounts to a deprivation of property in terms of s 25(1) of the Constitution. Since no law may permit arbitrary deprivation of property, it is necessary to ensure that the law of mortgage foreclosure also avoids this unconstitutional result. The principle is that a deprivation of property will be arbitrary if there is ‘no sufficient reason’ for such an interference with a debtor’s property. If residential property is sold in execution despite the fact that there are alternative ways to achieve the mortgagee’s purpose (namely, debt enforcement), the resultant deprivation will be arbitrary, since there is no sufficient nexus between the purpose of the deprivation and the effect that it has on the individual debtor. The need to scrutinise mortgage foreclosures on a case-by-case basis is especially important in the poverty and justice context, since the forced sale of and eventual eviction from the home will often cause or exacerbate the debtor’s socio-economic hardship. Based on the subsidiarity principles, it is argued that the requirements of s 25(1) can be fulfilled through the correct interpretation and application of the National Credit Act’s debt relief mechanisms — especially debt rearrangement — to the degree that they serve as viable alternatives to sales in execution.

Lived experiences of the choice on termination of Pregnancy Act 92 of 1996: Bridging the gap for women in need

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

Lived experiences of the choice on termination of Pregnancy Act 92 of 1996: Bridging the gap for women in need

Authors Camilla Pickles

ISSN: 1996-2126
Affiliations: LLD candidate and Academic Assistant at the Centre for Child Law, Department of Private Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 515 – 535

Abstract

The Choice on Termination of Pregnancy Act 92 of 1996 embodies a laudable and liberal ideal, namely that the course of a woman’s life does not have to be determined by her reproductive capacity. Instead, she has the right to free, non-therapeutic termination of pregnancy in a safe environment, a right which exists up to the end of the second trimester. Dignity, equality, and security of the person are therefore the foundation stones of the right. However, this is not the case for women with limited means who have no choice but to rely on the public provision of termination-of-pregnancy services. Studies of women’s lived experiences of the implementation of the Act show that there are barriers to accessing termination-of-pregnancy procedures that need to be removed if they are to enjoy this right fully. Not least of these barriers is the state’s failure to fulfil its s 27 obligations in terms of the Constitution of the Republic of South Africa, 1996, as well as its far-reaching inaction in engaging with the implementation of the Act. Numerous other barriers exist at the provider and community level. Only through the removal of such barriers and with the state’s fulfilment of its obligations will it be possible to translate the provisions of the Act into their envisaged implementation, thus guaranteeing all women in South Africa (regardless of socio-economic standing) the right to safe and quality termination of pregnancy that is accompanied by dignity, equality and security of the person.

When moral outrage determines a legal response: Surrogacy as labour

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

When moral outrage determines a legal response: Surrogacy as labour

Authors Caroline Nicholson

ISSN: 1996-2126
Affiliations: Department of Jurisprudence, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 496 – 514

Abstract

Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

by | Oct 19, 2019 | SAJHR, SAJHR V29 I3

The role of administrative law in enforcing socio-economic rights: Revisiting Joseph

Authors Melanie Murcott

ISSN: 1996-2126
Affiliations: Lecturer, Department of Public Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 481 – 495

Abstract

Joseph v City of Johannesburg has been both applauded by administrative lawyers, as a case in which formalism was rejected and a substantive model of administrative law adjudication was embraced, and condemned by human rights lawyers, as a case that focused on procedural fairness rather than ‘the hard rights of citizens and their plight’. I argue that because Joseph concerned a group of poor and vulnerable occupiers of an inner-city building deprived of their electricity, resulting in an inability to meet their basic needs: to cook, refrigerate their food, heat their homes, do homework, operate medical equipment, etc, Joseph is primarily a socio-economic rights case in which a requirement of the administrative law, procedural fairness, was invoked so as to protect and enforce a right to electricity. I critique the administrative law strategy invoked on behalf of the occupiers in Joseph to enforce the occupiers’ claim to have their electricity reconnected; the courts’ treatment of that strategy; and whether it is an effective and, if so, desirable tool for the enforcement of socio-economic rights in the future.