Research Articles (Public Law)
Recent Submissions
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Applying the mandament van spolie in the case of incorporeals : two recent examples from case law
(Juta Law, 2015-01)The mandament van spolie is a remedy available in South African law to protect possession of property. The remedy is aimed at ensuring restoration of possession ante omnia in instances of unlawful dispossession. It is not ...
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A decade and a half of deference (part 2)
(Juta Law, 2016-10)Hoexter and O’Regan J established deference as a prominent topic and principle, respectively. In doing so, both Hoexter and O’Regan J drew on Dyzenhaus’s conception of “deference as respect”. His conception of deference ...
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A decade and a half of deference (part 1)
(Juta Law, 2016-06)In 2000 Hoexter published an article on judicial review that became very influential in South African administrative-law scholarship and jurisprudence. In her article Hoexter raised the notion of deference in judicial ...
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The application of socio-economic rights to private law
(Juta Law, 2008-01)The constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range ...
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Ambit of mineral rights : paving the way for new order disputes
(Juta Law, 2007-01)The ambit of a real right, such as a mineral right, is determined by ascertaining the content thereof by identifying and listing its entitlements as well as identifying the limitations placed upon the exercise of such ...
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Artikel 3(1) en (2) van die Mineral and Petroleum Resources Development Act 28 van 2002 : n herbeskouing
(Juta Law, 2007-01)Die grondwet verplig die staat om ekologies volhoubare ontwikkeling van natuurlike hulpbronne sowel as ekonomiese en sosiale ontwikkeling te bewerkstellig. 1 Die grondwet bemagtig die staat om hierdie verpligting te ...
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Toward an equality-promoting interpretation of socio-economic rights in South Africa : insights from the egalitarian liberal tradition
(Juta Law, 2015-01)Theorists within the egalitarian liberal tradition have grappled with the question of how to achieve an alignment between the attribution of equal worth and citizenship to each person and the distribution of material ...
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The ambit of the discretion of courts in the case of encroachments : Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property
(Juta Law, 2015-01)The purpose of this note is to analyse a recent judgment of the South Gauteng High Court in Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property ...
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The law of general application requirement in expropriation law and the impact of the Expropriation Bill of 2015
(University of Pretoria, 2017)AFRIKAANSE OPSOMMING: In hierdie artikel word die vereiste ‘algemeen geldende regsvoorskrif’ in artikel 25(2) van die Grondwet van die Republiek van Suid-Afrika,1996, ontleed aan die hand van die Onteieningswetsontwerp ...
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Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society
(Faculty of Law, University of the Western Cape, 2017)In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. ...
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The rights of foreigners : dignity, citizenship and the right to have rights
(Juta Law, 2013-01)This article examines the rights of foreign nationals in view of Hannah Arendt's thesis that human rights amount to little when severed from the rights of members of a concrete political community. It considers three ...
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Mutual legal assistance in criminal matters and the risk of abuse of process: a human rights perspective
(Juta Law, 2006-01)Mutual legal assistance, as one of the modalities of international co-operation in criminal matters, is generally regarded as primarily a foreign policy matter. In this article it is argued that the mutual legal assistance ...
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The contours of a pedagogy of law in South Africa
(Juta Law Publishing, 2015-03)Reform of legal education is currently a topic of debate in South Africa again. Reform in higher education can, however, be dangerous and counter-productive if it is driven purely by policy agendas and in the absence of ...
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Rethinking the right to vote
(Juta Law Publishing, 2015-08)South African constitutional scholars have been puzzling for some time over a basic tension in the Constitutional Court’s voting rights jurisprudence. While some of its judgments show a commitment to a vigorous defence and ...
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Beyond UNCITRAL : the challenges of procurement reform implementation in Africa
(Juta Law Publishing, 2014-01)Most of the countries in sub-Saharan Africa have undergone some form of public procurement reform in the last two decades. This reform usually takes the form of the passage of new procurement regulation, which is usually ...
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Addressing the issue in Harvey v Umhlatuze Municipality in legislation
(Juta Law Publishing, 2014-01)In Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ("Harvey") the High Court had to decide whether it was competent to order the re-transfer of expropriated property to the previous owner when the purpose for which the ...
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Alternative measures to reduce trial cases, private autonomy and "public interest" : some observations with specific reference to plea bargaining and economic crimes
(Juta Law Publishing, 2014-01)This note considers alternative measures to reduce trial cases as a strategy to enhance the effectiveness of the criminal justice system. The emphasis falls on economic crime. It is noted that alternative measures, ...
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Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land Reform
(Juta Law Publishing, 2012-01)The results of post-apartheid land reform in South Africa have for a substantial period of time prompted scholars to ask key questions about the ability of law to achieve social change. Change in this case translating into ...
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Transformative constitutionalism in a democratic developmental state
(Juta Law Publishing, 2011-01)In order for socio-economic transformation to have a real impact on the lives of the poor and marginalised, meaningful participation in the development of law and policy as well as administrative decision-making, is required. ...
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Conceptualising "meaningful engagement" as a deliberative democratic partnership
(Juta Law Publishing, 2011-09)Nearly four years ago the Constitutional Court created the concept of "meaningful engagement" in Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). The ...
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Privatisation of the commons : water as a right; water as a commodity
(Juta Law Publishing, 2011-09)This contribution seeks to propose an accountability framework for States and non-State actors involved in the provision and management of water services. The article contends that States have a legal obligation under ...
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The importance of the commons in the context of intellectual property
(Juta Law Publishing, 2013-01)The intellectual commons or public domain is an important part of intellectual property law scholarship. In this regard it is necessary to examine the origins of the commons, what exactly the intellectual commons is and ...
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Thinking two worlds into one : the "distribution of the sensible" and women's renegotiation
(Juta Law Publishing, 2013-01)In this note, the author reflects on the subjectivity of women through the lens of Jacques Rancière's formulation of the "distribution of the sensible". The author discusses the French revolutionary woman, Olympe de Gouges, ...
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The right to diplomatic protection, the Von Abo decision, and one big can of worms : eroding the clarity of Kaunda
(Juta Law Publishing, 2009-02)Von Abo v Government of the RSA [2008] JOL 22219 (T) contains certain significant findings regarding the right to diplomatic protection and, more generally, the discretion of states in the conduct of foreign affairs. ...
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Sexual harassment and vicarious liability: a warning to political parties
(Juta Law Publishing, 2008-01)INSTRODUCTION: The allegations that the former ANC chief whip, Mbulelo Goniwe, sexually harassed an administrative assistant working in that party’s parliamentary office has brought to light the immense power the special ...
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Human dignity in comparative perspective
(Juta Law Publishing, 2009-02)This article compares the role of human dignity in constitutional interpretation in Germany and South Africa. Both countries have embraced dignity as a direct response to a troubled and totalitarian past. Nowadays dignity ...
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Polish apartment ownership compared with South African sectional titles
(Juta Law Publishing, 2006)INTRODUCTION: The aim of this article is to compare the institution of apartment ownership in a former socialist country, Poland, with the institution of sectional titles in South Africa. We shall see that the seed of ...
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Duty to support and the dependant's claim: the struggle of women married in terms of customary and muslim law
(Juta Law Publishing, 2006-02)INTRODUCTION: Although the economic empowerment and independence of widows are generally dependent on the enforcement of their inheritance rights (and concomitant protection of property rights), a dependant’s successful claim ...
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Needs, rights and transformation: adjudicating social rights
(Juta Law Publishing, 2006-01)INTRODUCTION: One of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular ...
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‘‘Subsidiarity’’: What's in the name for constitutional interpretation and adjudication?
(Juta Law Publishing, 2006-02)INTRODUCTION: ‘‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.’’ This ...
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