This study focuses on two legal instruments that grant robust protection against eviction: the European Convention on Human Rights (echr) and the South African Constitution (sa Constitution). It compares the protection offered by these two instruments to ascertain which of these instruments offer the most comprehensive protection to unlawful occupiers. This is done so as to determine whether and to what extent these instruments should adopt the protections and approaches offered by the other. It is concluded that, although prima facie the instruments offer similar protection, the implementation of the protections under the sa Constitution offers greater protection. While this can be justified by the socio-economic realities in South Africa, some recommendations regarding the implementation of protections under the echr are made.
See C.U. Schmid and J.R. Dinse‘European dimensions of residential tenancy law’European Review of Contract Law9(3) (2013) 201–220; S. Nield ‘Article 8 Respect for the home - A human property right?’ King’s Law Journal 23(2) (2013) 147–171.
See L.F. M’HonyConceptualising Home. Theories Laws and Policies (Oxford: Hart Publishing2007) 477–481; Remiche ‘Yordanova and others v. Bulgaria: The influence of the social right to adequate housing on the interpretation of the civil right to respect for one’s home’ (n 42) 787–800; S. Nield ‘Clash of the titans: Article 8 occupiers and their home’ in: S. Bright (ed) Modern Studies in Property Law - Volume 6 (Oxford: Hart 2011) at 102; Nield ‘Article 8 Respect for the home - A human property right?’ (n 35) 147–171