The Constitutional Protection of Tenants’ Interests: a Comparative Analysis

Abstract

The purpose of this article is to explore the constitutional recognition of tenants’ interests in South Africa, the United States, and Germany and critically analyse why these interests are in some instances accepted as constitutional property and protected as such. Flowing from an analysis of the judicial acceptance of tenants’ interests as constitutional property in German law on the basis that the purpose of property is to promote selfdevelopment, and similar theoretical arguments that have been voiced in US law that promote the protection of property rights in light of their function to promote human advancement and self-realisation, it is argued that arguments of this kind have no place in a constitutional framework where the right to housing is recognised. The South African housing provision, its enabling legislation, and the judicial interpretation thereof provide sufficient protection for tenants’ interests within the constitutional framework. It shows that in the case of an incomplete Bill of Rights the concept of constitutional property might have to be interpreted widely to make way for the protection of these and similar interests.