1. Margaret Stride – RFG 2010 Nuisance caused by Squatter Camps/ Informal Settlements

2. OUTLINE 1) Background -The law of nuisance -the squatter scenario 2) Constitutional Property Law 3) Case law… (the clash!) 4) Theory of property- Van der Walt’s Thesis 5) A new property regime? 6) Responsibility -Civic responsibility of Citizens -And of the State (as enabler) 7) Planning/Zoning law -Currently -Suggested solutions

3. 1) BACKGROUND- The Law of Nuisance OWNERSHIP USE/ ENJOYMENT FRUITS CONSUME/ DESTROYPOSSESS DISPOSE OF NEIGHBOUR LAW ENCROACHMENT NUISANCE ANNOYANCE ABUSE OF RIGHTS

4. The Scenario… Living next door… Some characteristics of informal settlements: Lack of infrastructure  No/little sanitation/sewerage systems (water pollution) (health hazards)  Dirt roads- (leading to dust) Fires (smoke pollution, fire risks) Crime Overcrowding (?) Decrease in surrounding property values

5. Van der Vyver: The Settlement Process: Urban settlements: Ownership Infrastructure Building Occupation Informal Settlements: Occupation Building Infrastructure Ownership

6. Factors a Court will Consider:  The gravity of the harm- the measure or extent of the interference;  The locality of the land/complaint;  the duration of the interference(must be continuous) ;  the benefit to the defendant (type and degree);  the sensitivity of the plaintiff to the harm (objective standard-ordinary person)  the possibility of avoiding or mitigating the harm.  The utility of the activity to the general public  THEN COURT ASSESSES THE REASONABLENESS Defences:  alleging that conduct complained of is not an unreasonable interference,  statutory defence such as servitude,  statutory authority  the applicant knew of the disturbance beforehand thus she/he should not complain about it.

7. …So it is easy to see how the presence of an informal settlement could lead to nuisance… Common law remedy Interdict BUT is this common law right/remedy still available?? And if is it still effective?? Constitution S25(1) - '' no one may be deprived of property except in accordance with a law of general application and no law may permit arbitrary deprivation of property, property may be appropriated only in terms of the law of general application“ this seems to protect Private property interests BUT –is the meaning the same as that in the private law context?

8. 2) CONSTITUTIONAL PROPERTY LAW CC in: Port Elizabeth Municipality v Various Occupiers ‘‘the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law.’ The Constitution itself-S 25 (4)-(9) S 26 Legislation -PIE ESTA

9. Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC) at 23: Where these opposing rights clash in a given situation, the proper function of the judiciary is, rather than to ‘establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case.’

10. Factors a Court will Consider:  The gravity of the harm- the measure or extent of the interference;  The locality of the land/complaint;  the duration of the interference(must be continuous) ;  the benefit to the defendant (type and degree);  the sensitivity of the plaintiff to the harm (objective standard-ordinary person)  the possibility of avoiding or mitigating the harm.  The utility of the activity to the general public  THEN COURT ASSESSES THE REASONABLENESS Defences:  alleging that conduct complained of is not an unreasonable interference,  statutory defence such as servitude,  statutory authority  the applicant knew of the disturbance beforehand thus she/he should not complain about it.

11. 3 ) Case law… (the clash!) Diepslott Residents and Landowners' Association v. the Administrator of Transvaal: Irreparable harm alleged by the applicants = Increase in smoke and dust pollution resulting from cooking and untarred roads; pollution of underground water supply resulting from the absence of sewage system; increased incidence of crime and the decline of market values in the area. Minister’s defence= Interferrence with private rights was authorised by the Less Formal Township Act

12. 4) Theory of property- Van der Walt’s Thesis “Property in the Margins” The rights paradigm: Real Rights Personal rights No rights History Politics Personal circs. Social context

13. What next? 5) A new property regime? 6) Responsibility -Civic responsibility of Citizens -And of the State (as enabler) 7) Planning/Zoning law -Currently -Suggested solutions

14. BIBLIOGRAPHY  Diepslott Residents and Landowners' Association v. the Administrator of Transvaal 1993(1)SA 577(T); 1993(3) SA 49(T).  Gien v Gien 1979 (2) SA 1113 (T).  Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others (20952/08) [2009] ZAWCHC 100  Residents and Landowners Association v the Administrator of Transvaal 1993 (1) SA 577 (T); 1993 (3) SA 49 (T).  Badenhorst P “Ownership: General Principles” in Badenhorst, Pienaar, Mostert Silberberg & Schoeman’s The Law of Property (2006) LexisNexis Butterworths  Roux T “Balancing Competing Property Interests - Diepslott Residents and Landowners' Association v. the Administrator of Transvaal 1993(1)SA 577(T); 1993(3) SA 49(T)” 1993 South African Journal on Human Rights 539-548 Roux T  van der Walt A J “Living with New Neighbours: Landownership, Land Reform and the Property Clause” 2002 SALJ 816-840 van der Walt A J  van der Walt A J “States Duty to Protect Owners v the State's Duty to Provide Housing: Thoughts on the Modderklip Case” 2005 South African Journal on Human Rights 144 to 162. van der Walt A J  van der Walt A J “Exclusivity of Ownership, Security of Tenure and Eviction Orders: A Critical Evaluation of Recent Case Law” 2002 South African Journal on Human Rights 372- 420. van der Walt A J  van der Walt A J Property in the Margins (2009) Hart Publishing Portland. van der Walt A J  Van Schalkwyk, LN, and Van der Spuy, PW General Principles of the Law of Things, (2002)  Van der Walt & Pienaar Law of Property.