The Constitutionality of Permission to Occupy as Opposed to the Deed of Grant and Title Deed under South African Law

Abstract

South Africa attained its democratic rule 30 years ago. However, solutions to some fundamental issues, such as the constitutionality of permission to occupy (PTO) vis a vis the deed of grant regarding land tenure, remain elusive. Although PTO is widely utilised as evidence of title to land ownership, a landholder with a PTO is insecure. This is so because PTO does not grant ownership to the holder, but it is commonly accepted that the personal rights granted are similar to having a real right. Moreover, PTOs are not registrable at the Deeds Office, as opposed to a deed of grant. It is further argued that, although the title deed is recognised by the Constitution, its use and availability in servicing the marginalised communities in urban and rural communities is worrisome. Title deeds are permanent and give the owners the right to occupy and enjoy the use of the land or property. However, PTO is temporary and can be repealed at the whim of authorities. Despite considerable efforts to eliminate overreliance on PTOs, their continuous use in tribal communities signifies the need for it to be considered a real right in law and practice. Ensuring that PTOs confer a real right is essential in solving the challenges of poverty and inequality in rural and urban communities. In particular, such a policy thrust would redress the discriminatory legacy of the apartheid system. This study's findings will inform a policy change and law reform. It will introduce a new perspective in law by influencing a new thinking amongst the legal fraternity. The law professionals will be intriqued to in proffer appropriate legal instruments critical to empowering marginalised communities.