Does method really matter? Reconsidering the role of common-law remedies in the eviction paradigm

Boggenpoel, Zsa-Zsa Temmers (2014-01)

CITATION: Boggenpoel, Z-Z. 2014. Does method really matter? Reconsidering the role of common-law remedies in the eviction paradigm. Stellenbosch Law Review = Stellenbosch Regstydskrif 25(1):72-98.

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The new constitutional dispensation brought with it (inevitably) large scale deviations in the way remedies in the context of evictions are applied in modern South African law. This article examines how the sources of law relate to one another in the search for suitable remedies for infringement of constitutional rights. Specifically in eviction law, it is clear that the relationship between the sources of law is uncertain for purposes of finding a remedy in the case of infringements of section 26(3) of the Constitution of the Republic of South Africa, 1996 ("the Constitution"). The evictee arguably has the possibility of two coinciding remedies, namely the mandament van spolie and a constitutional remedy under section 26(3). The article shows that both these remedies would in principle provide the same type of remedial content in the sense of ensuring that repossession takes place (thereby reversing the illegal eviction) so that the occupiers are (temporarily) placed in the position they were in prior to the illegal eviction (or dispossession) and the merits of the dispute can be decided in a subsequent eviction application. Nonetheless, it is argued that in order to ensure the types of decisions that give full effect to the rights as envisaged by the Constitution, courts should not be too quick to discard of the possibility that the common-law remedy could be invoked in the context of eviction. If the need arises to reconsider the common-law remedies in light of the Constitution (and to develop them in line with the Constitution) courts are not able to shy away from their obligation in terms of section 39(2).

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