Cape Town, Property Rights and the Constitutional Court

The courts on South Africa, and then specifically the Constitutional Court, have become a force in pursuance of a race-based agenda that are driven by destructive and discriminatory ideologies. Apparently, the Constitutional Court sees itself as an extension of the transformation apparatus in the country. If one considers the trends of judgements that have reference to ideology, in any meaningful sense, the court has persistently, without exclusion, took a hardline stance, feeling itself obliged to enforce a paradigm that align with what is view as “transformation” (a racial and socialist ideology based on a combination of Critical Race Theory and the National Democratic Revolution.

This trend is clear from various judgements; in the most recent past, examples include the case of “Kill the Boer, Kill the Farmer”, the renaming of street names in the City of Tshwane, and the Renate Barnard case (to mention only a few). In fact, the Constitutional Court has established a trend to reverse the judgements of the Supreme Court in cases dealing with race and culture on appeal. Judgements are clearly based on an ideological interpretation of cases.

I regard so-called “transformation” and “redress” as racial discrimination. The judgements of the Constitutional Court therefore, for me, persistently legalize racial discrimination, and often cultural marginalization.

In the Tshwane case, where the changing of street names was the issue, judges of the Constitutional Court expressed the opinion that street names based on the Afrikaner heritage cannot be Constitutionally protected, because it is vested in an history of racial discrimination.

However, this trend is not only limited to racial and cultural concerns; it is increasingly finding expression in assumptions about economic policy and ideology.

In a judgement delivered about a week back, the Constitutional Court found that the City of Cape Town cannot sells its own property, in Sea Point, to private developers, but that the city must use it low-cost housing. Following the court’s arguments and conclusions, it is clear that this judgement was based on socialist ideology, and social engineering; informed by race-based and historical interpretations of the Constitution and conditions in the city.

The judgement reads as follows:

“At its core, this case raises a fundamental constitutional question: how do we, as a society, in a free, democratic dispensation, address the enduring legacy of spatial apartheid?  The submissions in these matters have highlighted the crucial distinction between merely distributing resources and ensuring that those resources are distributed in a manner that actively dismantles historical inequalities shaped by race and class along geographical lines.”

This is pure socialism, vested in the roots of the transformation agenda. It is an ideological interpretation of a legal stipulation. The quoted sections in the judgement, referring it back to a Constitutional imperative, are all part of the “transformation exclusions” so typical van Chapter 2 (the so-called Bill of Fundamental Rights). It is all based on an ideological and judgment-based interpretation of historical events and “redress”, excluding elementary principles (such as property rights) to provide for judgement-based discrimination.

The judgement is apparently based on an interpretation of Sections 25 and 26 of the Constitution.

Section 25 of the Constitution

Section 25 (5) reads as follows:

“The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”

This is part of the much-debated Section 25 of the Constitution, which guarantees property rights; with the exclusion of the demands of “redress”. The court judged that the ownership (and right to sell its property) of the City of Cape Town is dependent on (and subjected to) an ideological interpretation of the need for “redress”.

This is sadly (and dangerously) also part of an established trend.

In 1997, the Extension of Security of Tenure Act established the requirements that land owners wishing to deposed of illegal settlers on their land (property) can only do so if a court order is obtained, and if suitable, alternative land are made available to the invaders.

Section 3 of the said Act reads as follows:

“For the purposes of this Act, consent to a person to reside on land shall be effective regardless of whether the occupier, owner or person in charge has to obtain some other official authority required by law for such reside.”

This was always in contradiction with the established common principle law about property ownership, which is that how individuals acquire, use, and transfer assets must center on exclusive ownership and the principle that owners must retain absolute control over their corporeal and incorporeal property.

Yet the South African Constitutional Court was apparently wiser. In the case Daniels v Scribante and Another, 2017, the Court again referred back to history, ideology and transformation to justifies its anti-ownership judgement:

“The land, our purpose is the land; that is what we must achieve.  The land is our whole lives: we plough it for food; we build our houses from the soil; we live on it; and we are buried in it.  When the whites took our land away from us, we lost the dignity of our lives: we could no longer feed our children; we were forced to become servants; we were treated like animals.  Our people have many problems; we are beaten and killed by the farmers; the wages we earn are too little to buy even a bag of mielie-meal.  We must unite together to help each other and face the Boers.  But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.”

“This impassioned, painful cry highlights the effects of the dispossession of African people of their land by whites.  It is this dispossession and other stratagems that forced people off their land.  The result was that some found themselves living and working on land that was now in the hands of whites.  As Mr Petros Nkosi says, their way of life had been torn asunder.  They had been stripped of their dignity. “

The legal basis for judgements like this is vague; the ideology and the agenda of transformation are overwhelming.

Again, the issue is the discriminatory exclusionary nature of the Constitutional dispensation in the country. In this case, the principle of private ownership has been established, but made subjective and secondary to the ideological determinants of “transformation” and “redress.” In this regard, Section 25(6) of the Constitution stipulates as follows:

“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

The manner in which these “transformation-directed” sections of the Constitution has been enforced and interpreted by the courts since 1994, has created now forms and manifestations of racial discrimination. More than that: It is often based on destructive political – and economic ideologies. In practice, it support tenderpreneurship and wide-scale corruption.

In 2002, the Mineral and Petroleum Resources Development Act put the property rights of all mineral resources in the country under the control of the state (and, in doing so, for all practical purposes, nationalising mineral rights).

Typical to the illogical assumptions you often find in the policy thinking (and documents) of the South African state, the Act stipulates that

“the objects of this Act are to recognise the internationally accepted right of the State to exercise sovereignty over all the mineral and petroleum resources within the Republic” (“internationally accepted” can only be in socialist states); “give effect to the principle of the State’s custodianship of the nation’s mineral and petroleum resources” (pure socialism, and even communism); and “substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and communities, to enter into and actively participate in the mineral and petroleum industries and to benefit from the exploitation of the nation’s mineral and petroleum resources” (again, the ideological rhetoric based on racial ideology).

This Act was the main reason for the deteriorating, and ever-increasing pace of collapse, of the South African once proud mining sector.

Section 26(1) and (2) of the Constitution

Sections 26(1) and (2) of the Constitution read as follow:

“1. Everyone has the right to have access to adequate housing.

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

Section 26(1) of the Constitution is typical of the ideological and impractical nature thereof. There is absolutely no way that the state (or the City of Cape Town) can guarantee everyone access to adequate housing. In any event, what is “adequate housing”? Why must it be a piece of land in the Sea Point suburb of Cape Town City?

The argument in the judgement is that

“any policies, programmes and projects which involve social housing in areas sufficiently close to the CBD that should, in the Province’s opinion, be taken into account in assessing compliance with the obligation” 

(from the judgement) (the obligation is that everyone in the country must be provided with access to adequate housing).

The IOL gives an informative summary of the implications of the judgement:

“The Constitutional Court has ruled that South Africa’s constitutional right to adequate housing is about more than simply putting a roof over people’s heads – finding that where affordable housing is built is central to giving effect to the rights contained in the Bill of Rights.”

It boils down to a theme that has increasingly penetrated the national leftist narrative in the country, and that is the ideological and “transformation”-driven believe that cities must be redesigned to bring the poor closer to inner city areas (and employment opportunities).

I do understand (and believe) that Apartheid has exercised a destructive impact on spatial design of cities and towns in South Africa. I understand that it has severe implications for the poor (who must spend a disproportional part of their income on transportation).

However, I also know that what is currently brewing in the minds (and political-ideological inventions) of the current South African decisions, will destroy property rights and the property market in the country. More than that, it is clear that the judgements of the country’s courts, and the policies of its state, are driven by a race-based obsession with what is called “transformation.” Unfortunately, the country’s Constitution is allowing this.

References

Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others (CCT 126/24; CCT 128/24) [2026] ZACC 29 (2 July 2026).

Google AI used.

Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017) (Case CCT 50/16).

Extension Of Security Of Tenure Act, 1997

Mineral And Petroleum Resources Development Act 28 Of 2002.

The Constitutional Court has redefined what 'adequate housing' really means. IOL. Author: Nicola Mawson. Published 3 July 2026. https://iol.co.za/business/2026-07-03-the-constitutional-court-has-redefined-what-adequate-housing-really-means/