The Implications of the Mtolo v Lombard Decision on the Understanding of the Nature of Ownership

Abstract

In the South African context, property law has changed considerably in line with the Constitution. Ownership (property rights in the broader sense) now involves a constitutionally required balance between the interests of owners and non-owners. Therefore, ownership can no longer be perceived only in terms of its absolutist or exclusionary element. The Constitution and court judgments have radically affected the nature of ownership in South Africa. For example, the Constitutional Court decision in Mtolo v Lombard confirms that the nature, content and concept of ownership have changed. The decision also demonstrates that the nature of ownership continues to evolve in light of the legal and constitutional framework within which ownership operates. In Mtolo, the Constitutional Court considered whether the respondents (landowners in this case) had, in fact, restored the applicants’ home to a state suitable for human habitation, in compliance with an order of the High Court. The Constitutional Court found that the restoration of the roof and windows was not done and instructed the respondents to comply forthwith with the order.

The author claims that the decision provides insights into understanding ownership in the constitutional era. This article looks at the implications of the Mtolo decision on the nature of ownership. In so doing, the article takes into consideration the current needs (of applicants) and the changing circumstances of society, and of the constitutional system that recognises competing rights, and on which limitations and obligations are to be expected.

The author introduces the article with a brief overview of the plight of non-owners –in particular, farmworkers who work and live on farmland. The article then proceeds first, to outline the facts and issues of the Mtolo case; secondly, to explore the outcome of the Mtolo case and its relevance, taking into account the elements of a dignified and habitable home, the constitutional rights that are implicated and the obligations of the State, as well as private owners, to ensure habitable homes for occupiers; and thirdly, to assess the implications of the Mtolo decision on the nature of ownership. The article concludes that in a legal and constitutional system, the nature of ownership continues to evolve and adapt to prevailing circumstances, such as protecting the constitutional rights of vulnerable farmworkers.