Browsing by Author "Marais, Ernst Jacobus"
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- ItemAcquisitive prescription in view of the property clause(Stellenbosch : Stellenbosch University, 2011-12) Marais, Ernst Jacobus; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: Acquisitive prescription (“prescription”), an original method of acquisition of ownership, is regulated by two prescription acts. Prescription is mostly regarded as an unproblematic area of South African property law, since its requirements are reasonably clear and legally certain. However, the unproblematic nature of this legal rule was recently brought into question by the English Pye case. This case concerned an owner in England who lost valuable land through adverse possession. After the domestic courts confirmed that the owner had lost ownership through adverse possession, the Fourth Chamber of the European Court of Human Rights in Strasbourg found that this legal institution constituted an uncompensated expropriation, which is in conflict with Article 1 of Protocol No 1 to the European Convention on Human Rights and Fundamental Freedoms 1950. This judgment may have repercussions for the constitutionality of prescription in South African law, despite the fact that the Grand Chamber – on appeal – found that adverse possession actually constitutes a mere (constitutional) deprivation of property. Therefore, it was necessary to investigate whether prescription is in line with section 25 of the Constitution. To answer this question, the dissertation investigates the historical roots of prescription in Roman and Roman-Dutch law, together with its modern requirements in South African law. The focus then shifts to how prescription operates in certain foreign systems, namely England, the Netherlands, France and Germany. This comparative perspective illustrates that the requirements for prescription are stricter in jurisdictions with a positive registration system. Furthermore, the civil law countries require possessors to possess property with the more strenuous animus domini, as opposed to English law that merely requires possession animo possidendi. The justifications for prescription are subsequently analysed in terms of the Lockean labour theory, Radin’s personality theory and law and economics theory. These theories indicate that sufficient moral and economic reasons exist for retaining prescription in countries with a negative registration system. These conclusions are finally used to determine whether prescription is in line with the property clause. The FNB methodology indicates that prescription constitutes a non-arbitrary deprivation of property. If one adheres to the FNB methodology it is equally unlikely that prescription could amount to an uncompensated expropriation or even to constructive expropriation. I conclude that prescription is in line with the South African property clause, which is analogous to the decision of the Grand Chamber in Pye.
- ItemDie kerk en die industriele mens(Stellenbosch : Stellenbosch University, 1960-09) Marais, Ernst Jacobus; Stellenbosch University. Faculty of . Dept. of .AFRIKAANSE OPSOMMING: Geen opsomming beskikbaar.
- ItemPastorale sorg aan die mens in die bedryf : 'n pastoraal-psigologiese studie van die bediening van die kerk aan die mens in die bedryf van die twintigste eeu(Stellenbosch : Stellenbosch University, 1969-02) Marais, Ernst Jacobus; Kotze, J. C. G.; De Villiers, D. W.; Pieterse, J. E.; Stellenbosch University. Faculty of Theology. Dept. of Practical Theology and Missiology.AFRIKAANSE OPSOMMING: Geen opsomming beskikbaar.