A ‘House’ Is …?

This chapter advocates for Alter-Native Constitutionalism’s prioritisation of vernacular understandings of property and housing within South African law, challenging the colonial legacy of ‘ lex nullius ’ that undermines Black South Africans’ land claims. It critiques the un common law’s failure to recognise the Ntu’s historically-rooted, multigenerational land-based relationships and emphasises the interconnectedness of property and housing. The chapter uses Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation set out in Chapter 6 to critique the ways in which, in its precedents, the Constitutional Court has interpreted the property and housing clauses to the near-complete exclusion of vernacular law’s layered property rights system. It argues that courts, as part of the state, should enforce these constitutional protections using Alter-Native Constitutionalism to uphold vernacular land rights. Further, arguing that the courts must prioritise equitable housing access over strict property rights, the chapter uses the Salem case’s limited ‘sharing model’ attempts vis-à-vis restitution to show that vernacular law’s ‘access-to-occupation’ could be feasibly extended throughout South African ‘property law’ in a manner that would reduce forced evictions and balance state, ‘owner’ and beneficial occupiers’ interests. The chapter thus illustratively pushes for judicial interpretations that better reflect ordinary people’s socio-economic realities, needs and sociocultural values, as well as constitutional commitments.