Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality
Author Z T Boggenpoel
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.