Dispossession: Examining the Rights of the Excluded

According to van der Walt, property discourse should focus on the experiences of those at the ‘margins of society’. Using this theory as inspiration and the Focus E15 campaign as a case study, this paper will address dispossession by examining the rights of those who are excluded. It will argue that once an individual has been dispossessed, her claim for the recovery of land is both weakened and contingent. Under the principle of relativity of title, her interests must be balanced against those of another occupier or a person seeking possession of the property. Likewise, she may have to rely on equity for a remedy, meaning her rights are discretionary and dependent on principles of natural justice.

Against that background, this paper will contend that as a result of dispossession, an individual’s position is necessarily much weaker with regards to any subsequent transactions that she may enter involving land. In the context of housing, for example, she may find that she is unable to provide a tenancy deposit or produce a reference from her landlord. That, in turn, could affect her choice of home or the area in which she lives. Taken together, this creates a ‘downwards spiral’, leaving an individual in an increasingly precarious and vulnerable situation. After all, she has little social capital and may be unable to develop enduring property relationships with others. Therefore, it follows that although property rights may prevent an incident of dispossession, they do not tackle its economic and structural causes or assist an individual in respect of her poor bargaining position. For those reasons, this paper will conclude that the law must address the cyclical nature of dispossession through a social right to decent housing.