in my own opinion it is justified.looking at the zimbabwean land reform programme apart from its pros n cons,its intentions was to redistribute land that was taken by the whites colonialist to the whole of zimbabweans.
The Right of ownership is a basic right in most legal systems. It is a core foundation of any civil relationship. Almost all civil relationships are built around ownership and possession. The whole idea of ownership rights is to regulate people's relationships toward each other in terms of objets and possessions and to regulate the owner's use of the possesson. If you allow squatters on privately owned land you are essetially depriving the owner of his/ her right to ownership. Should the owner not be asked if he/ she would allow the squatters? Is it not the owner's choice what is to be done with their property?
just an important point to note,illegally occupying someone's land does not take away their right to ownership, we should also have it in mind that no right is absolute.moreover we should look at the reasons that make people illegally occupy other people's land,According to the PIE act of 1998,poverty and unemployment,past policies that prevented people from obtaining housing in the urban areas,the perception of unfair housing allocation,shortage of legally obtainable housing alternatives to mentions the list are some of the reason that results to the unauthorized occupation of privately owned unused land,hence i justify the illegal occupation if its for the benefit of the public.Adding on, the reason why most African countries e.g Zimbabwe, south Africa to mention a few conducted land reform programs was to settle down the unfair land allocation that was set by the colonialist and in my opinion the was was a splendid idea as it did good for the better public than greedy individuals. According to section 26 of the constitution that forms part in the socio-economic rights contained in the bill of rights, it states that everyone has a right to adequate housing ,subsection 3 goes on to mention that no one may be evicted from their homes or have their homes abolished without a court order made after considering all relevant circumstances. No legislation may permit arbitrary eviction.
Ah, but it does take certain rights of ownership away from the owner if people are illegally occupying his/her land. Is it not the owner's right to do with his/her property as they may wish? Furthermore who decides what is used and unused in terms of property? What if a farmer leaves land bare for the soil to regenerate? That appears unused. And a land developer keeping land clean while waiting for the official paperwork to be finalised? That also appears unused. When these owners finally get to "using" their property they can't because people are occupying that space. As for "past policies" you so eloquently mentioned, we cannot keep calling "injustices of the past" to right every wrong we commit today. 20 years from now we have still have the same problem. People will be saying land was taken from their families to right the wrongs of Apartheid and that they now want it back due to the fact that they were unfairly wronged. As for the PIE act, it also clearly states that an owner may evict illegal occupiers from his/her land. Have you ever noticed the increase of criminal activity surrounding informal settlements? How is that to the benefit of the public? Does the public not have a right to safety and security? Not to mention privacy. Having their homes invaded and robbed (or worse) does not respect those rights. Adding to that, the value of land decreases when there are squatters on that land. It also decreases all the surrounding property value. That means an entire region's economic value is decreased. How is that to the good of the public? Whenever the economy goes down prices go up. So now they not only have to deal with squatters they also have economic problems. As for section 26 of the constitution it states that every person hase the right to accesto adequate housing and (ito subsection 2) that it is the state's responsibility to provide people with this access. It is not the duty of the private citizen. Even with compensation you are taking something away from them that they worked for or received from their family (who propbably worked for it in turn. The "compensation" the state can offer them will never amount to the same value as the benefits they could have received through the property. Their assets are being taken from them. They don't want to give it up. If they wanted to give it up they would have sold it. Look at the reality of this. The state does compensate people for their land. But the land could be worth millions and they'll get (maybe) R20 000 for their property. Is that fair and justified?
Since we are both South African law students I feel the need to bring transformative constitutionalism (TC) into the mix. TC is all about changing society into a better society through the application of the values in the constitution. To achieve this the constitution needs to be adhered to, to start with. I want to point out that "unauthorised occupation" is unlawfull. Thus it is against the constitution. How can we achieve a better society through constitutional values if we are allowing unlawfull acts? What then is the point of a legal system? For now its minor issues. Now we say "Its not that bad. It's not like the're using the land. Why not let other people, people who need it, use it?" Legalising unlawfull occupation is the first step. Pretty soon it's "just" theft and "just" corruption and "just" plagiarism, not to mention more grievious crimes like assualt and rape. If we can justify one crime, what's stopping us from justifying others?
Section 36(1)(e) of the constitution states that human rights can only be limited when there are no other, less restrictive, means to achieve a certain purpose. Section 26(2) of the constitution creates the following obligation with regards to housing: "The state must take reasonable legislative and other means, within its available resources, to achieve the progressive realisation of this right." This obligation is only put on the state. There is no obligation on any private citizen to provide housing to the homeless. It is strictly an obligation of the state. The state cannot allow squatters to occupy privately owned land even if it is unused. It can however supply the homeless with land by buying out any owner of unused land. This provision is provided for in section 25(2)(b) of the constitution where it states that the property owner is: "Subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court." As shown, there is a way to supply people with access to housing without taking other people"s rights away.
Reasons for voting decision: Conduct for the forfeits which, in this case, also harmed Con's arguments, as Pro was able to present some things unrebutted. Thus, arguments too. As always, happy to clarify this RFD.
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