Research Articles (Public Law)

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Where is property? Some thoughts on the theoretical implications of Daniels v Scribante
(NISC, 2020) Boggenpoel, Zsa-Zsa; Slade, Bradley
The theoretical implications of the Constitutional Court’s decision in Daniels v Scribante are analysed in this article. With reference to Jane Baron’s theory of the contested commitments of property, it considers the place of property, or ownership, in resolving property disputes in the new constitutional dispensation. The starting point of a dispute involving property is important in the sense that it may determine the potential outcome, or remedy that is awarded, in any particular dispute. Placing property at the centre, or at the heart of any dispute that may involve property, can in certain circumstances go against the constitutional aspirations of healing the divisions of the past and building a society based on fundamental values, such as human dignity. With reference to the arguments of progressive theorists, it is argued that the Constitutional Court in Daniels placed property on the fringes; indicating that property owners may have to sacrifice more in protecting the rights of non-owners. Therefore, the Daniels decision is an important decision for our evolving understanding of the place of property in democratic South Africa.
A teleological approach to interpreting socio-economic rights in the African Charter : appropriateness and methodology
(Pretoria University Law Press (PULP), 2021-07) Amin, Anneth
The incorporation of socio-economic rights in the African Charter on Human and Peoples’ Rights should be considered a vital move towards the transformation of socio-economic conditions of the people on the continent. However, the envisaged socio-economic transformation depends largely on how these rights are interpreted. It is the task of the supervisory organs of the African Charter to develop the scope and content of these rights and their related obligations through interpretation. To achieve this interpretative objective, interpretive process of the supervisory organs should be guided by an appropriate approach to interpretation that is applied coherently. This article argues that the teleological approach to treaty interpretation is an appropriate approach to interpreting socio-economic rights in the African Charter. The article develops a methodology for application of the teleological approach through which socio-economic rights in the African Charter may be effectively interpreted.
Developing criteria for the identification of suitable agricultural land for expropriation and redistribution in South Africa : lessons learnt from Namibia
(Juta, 2021-11-01) Kotze, Tina
There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, non-arbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.
(Re)defining the contours of ownership : moving beyond white picket fences
(Juta Law Publishing, 2019) Boggenpoel, Zsa-Zsa Temmers
Ownership is often viewed as superior in the sense that all other rights or interests are seen as subordinate to ownership. It is often viewed in this light because it is a substantial ingredient of the patrimonial rights that make up a legal subject’s entire state of assets. Ownership is also sometimes seen as the mother right because all other rights purportedly derive from ownership. This article attempts to challenge this view by relying on a number of examples that point towards a redefining of the contours of ownership. The owner’s inability to use the rei vindicatio in some instances, his failure to be able to demand removal of an encroaching structure and the ability of other (sometimes constitutional) rights to prevent the enforcement of ownership, arguably calls for a different, changed perspective of ownership in the new constitutional dispensation. It is on this basis that this article questions whether what has always been deemed exceptions, qualifications and caveats to our general understanding of ownership, should in fact point towards a redefining of the contours of ownership.
Conflicting levels of engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act : a closer look at the Xolobeni Community dispute
(Academy of Science of South Africa, 2020-06-18) Tlale, Mpho Tsepiso
The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members. Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

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