Tracing Civil-law Property in Land Reform and Housing: Tenacious Traditions and Divides

Abstract

Post-apartheid South Africa inherited grave property divisions along racial lines, which constitutionally ordained property and housing provisions set out to redress along egalitarian lines. The article unpacks this property reform imperative from a distinctly civil-law perspective. Civil-law traditions, specifically the concept of property and the public/private divide, are critically reflected on to trace the extent to which the reformation of the property institution included civil-law property as a means for reform, and therefore also altered some of its underlying apartheid-led concepts. The article shows that civil-law property continues to thrive for the minority, whereas several crucial land reform and housing policies and legislative measures created statutory types of rights with "secure tenure" under the public realm. The state opted to create new public-law land reform and housing laws under the auspices of constitutional aims, yet with meager civil-law property elements. In consequence, private property rights with their distinct civil-law heritage remain intact and are mostly left unamended as a distinctly private-law subject. Instead, the Constitution as the central text should arguably have led to new levels of civil law meaning. The article reflects on the inadequate extent to which property provisions in the Constitution have assimilated with civil-law property rules, principles and practices into one constitutionally-embedded property discourse. The article argues that civil-law property should be deliberately relied on to align the discourse with constitutional property imperatives, thereby changing civil-law traditions that continue to entrench norms and virtues of the previous apartheid-led regime, and replacing them with new, transformative ideals.