‘Property in Housing’: UP Law professor co-publishes book on right of access to adequate housing from a property perspective

Posted on November 23, 2021

The University of Pretoria’s (UP) Professor Gustav Muller and a colleague from the University of the Western Cape, Professor Sue-Mari Viljoen, have recently published a book titled Property in Housing, which is aimed at reassessing how and to what extent property plays a role in the protection, promotion and fulfilment of the right to housing.

“We trust that this book will be useful to our colleagues and senior students, but also that it may be a resource for judges as they continue to grapple with the right of access to adequate housing,” said Prof Muller, an Associate Professor in the Department of Private Law at UP. “Beyond our immediate property law colleagues, we also hope that law colleagues from other disciplines, including banking law, consumer law, competition law, constitutional law, administrative law, procurement, will find some food for thought to explore synergies that have not yet been fully ventilated. Furthermore, we envisage that our book might ignite conversation beyond law, especially in the built environment.”

The book unpacks the right of access to adequate housing (section 26 of the Constitution of the Republic of South Africa, 1996) from a property perspective and forms part of Juta’s Property Law Library.

Prof Viljoen says the characteristics that are indicative of having access to ‘adequate’ housing as articulated by the United Nations Committee on Economic, Social and Cultural Rights in its General Comment 4 are used as an organising framework for the volume. “It is within this framework that we explore how property law can be used and aligned to implement the right of access to adequate housing as a vehicle for large-scale transformative aims,” she said.

Prof Muller further says themes that are used to explore the vigorous relationship between property and housing include the centrality of the home in housing versus proprietary conflicts; the extent to which property narrates the conception of adequate housing, absent dedicated legislative reform; and the continued instrumentality of property as a vehicle for transforming the housing sphere.

“The property paradox in the context of the housing clause is threefold: the property institution must be curtailed to make way for housing interests; at the same time, it must be utilised (with legislative measures and sometimes without) to do some of the section 26(1) heavy lifting, for instance, to provide secure tenure or ensure access to services; and it must foster a culture of regulation, by way of the constitutional property clause (section 25), to provide the required access to the spaces that we envision adequate, at the costs that we consider reasonable.”

The monograph first introduces their approach, methodologically and theoretically, with reference to the history of property in housing in South Africa, the limited juridical development of their understanding of ‘adequate’ housing in the constitutional dispensation, the way in which housing relates to other constitutional rights, and the constituent characteristics of what can be understood as indicative of having ‘adequate’ housing.

The remainder explores each of the internationally recognised characteristics by drawing on property law security of tenure, services, accessibility, habitability, affordability, location and cultural adequacy as components of the organising framework to interpret the progressive realisation of the South African housing mandate and respecting its anti-eviction measures. “The development of the normative and substantive content of the right of access to ‘adequate’ housing lies in the space left incomplete by property law. As such, this monograph is a call to action for this development to be achieved in order to foster a democratic South Africa for all who live in it,” added Prof Muller.

- Author Xolani Mathibela
Published by Lourika Pienaar

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