Highlighting the disconnect between law and reality: Are the marginalised left behind?

There have been a number of pronouncements by justices in various courts that speak to the disconnect between the ideals of the Constitution and reality, especially in the context of the appropriateness and implementation of some pieces of legislation, policies and bylaws. It is the purpose of this lecture to reflect on this disconnect in the context of marginalised groups, specifically the landless and homeless. Arguably, the imperative of land reform to address more substantial equality in the context of land has woefully disappointed the landless in South Africa. Similarly, in the case of the homeless, the laws and policies in place do not always appropriately fit the particular realities and challenges facing this group. Interestingly, in both these contexts recent courts have been quick to point out the disconnect and the importance of guaranteeing more congruence in this regard so as to ensure more adequate protection of these marginalised groups. There is a particular narrative that is evolving regarding these groups, especially in terms of how they should be treated in the new constitutional dispensation. In this respect, they should not be seen as social outcasts or disturbances; they too are human beings with the constitutional right(s) to human dignity, privacy and property. It is submitted that if the laws and reality are not aligned more appropriately, not only are the constitutional rights of these groups ignored, but the prospects of reducing poverty in South Africa (especially with regard to minimising the gap between the rich and the poor) is substantially hampered.