Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality

Author Z T Boggenpoel

ISSN: 1996-2177
Affiliations: Professor in Public Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 3, p. 424-438


This note analyses the judgment in Ngomane v City of Johannesburg Metropolitan  Municipality from the perspective of property law and constitutional property  law. It highlights the tendency of South African property law to compartmentalise  remedies into common-law, legislative and constitutional remedies, especially in the  case of remedies for violations of constitutional rights. It is argued that the interplay  between remedies from different sources of law should not be overlooked, but in fact  renegotiated every time the possibility arises that existing common-law remedies can  be used to give effect to constitutional rights. The note also reconsiders the court’s  conclusion that constitutional damages be awarded for the infringement of the property  clause (s 25 of the Bill of Rights), and argues that a more principled discussion was  necessary in the judgment in order to conclude that there was in fact an infringement  of s 25(1). The note suggests that although the judgment should be welcomed for  vehemently speaking out against the violation of constitutional rights, the case could  certainly have benefited from a more principled and clear discussion of the interplay  between constitutional and common-law remedies on the one hand, and the violation  of the constitutional right to property, on the other hand.