Department of Private Law

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https://scholar.sun.ac.za/handle/10019.1/130

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Browsing Department of Private Law by browse.metadata.advisor "Boggenpoel, Zsa-Zsa"

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    Investigating the role of participation in the upgrading of informal settlements : identifying challenges and opportunities
    (Stellenbosch : Stellenbosch University, 2022-03) Sameera, Mahomedy; Boggenpoel, Zsa-Zsa; Boggenpoel, Z. T.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The advent of the Constitution of the Republic of South Africa, 1996 was a major milestone for South Africa in terms of its potential to redress the atrocities of colonialism and apartheid. While this has resulted in major legal developments, the consequences of colonialism and apartheid are still present and can be seen in the continuation of vast socio-economic inequalities. One of the major remnants of apartheid is the large number of informal settlements that were established as a result of a combination of factors, which included various race-based planning legislation. Government has shifted its attention from conventional housing programmes, which focused on the incremental provision of subsidised housing, to upgrading existing settlements, specifically focusing on the in situ upgrading of informal settlements. Community participation and deliberation on the process of upgrading, as well as alternatives thereto, are vital. Participatory planning has the potential to provide solutions to social exclusion and to empower citizens. As such, it holds value in addressing issues related to informal settlements and achieving spatial justice. However, concerns relating to the implementation of participatory processes in the upgrading of informal settlements have been raised. Given the importance of participation in relation to upgrading informal settlements, it becomes necessary to place the involvement of the communities affected under the spotlight. It is this notion of participation in the context of upgrading informal settlements that is the focus of this dissertation. In particular, the study investigates the role that participation plays in upgrading informal settlements. This investigation is undertaken by examining the justifications posited for using participation in upgrading informal settlements as well as the criticisms thereof. Furthermore, this dissertation explores the theoretical role that participation plays by looking at various policies and programmes that govern the upgrading of informal settlements in South Africa to determine the extent to which participation features therein. The role that participation plays in practice is also evaluated through an investigation of case law pertaining to upgrading informal settlements. The theoretical and practical roles of participation in upgrading informal settlements are examined to determine whether the participatory processes used in the context of upgrading informal settlements are in line with the theory set out in this dissertation. For purposes of the study, a comparative perspective is useful. Brazil is of particular interest in this respect given that it shares a similar socio-economic climate and political history with South Africa as well as the parallels present in terms of informal settlement growth patterns and the use of participation to remedy this issue. This comparison aims to address challenges experienced in the South African context and to identify opportunities to strengthen the current approach to upgrading informal settlements in South Africa by providing recommendations that can assist with future upgrading projects and with public policy.
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    Trading rights as a novel category of servitudes in South African law
    (Stellenbosch : Stellenbosch University, 2019-12) Kiewitz, Leigh-Ann; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This dissertation sought to determine whether it is possible to recognise trading rights as a category of servitudes; what its nature and content would be if such recognition is possible; and, under which conditions such servitudes could be registered. South African case law has revealed the courts’ willingness to regard the right of an individual to trade on another’s land, and a right to prevent another person from trading on their own land, as a praedial or a personal servitude. However, the relevant case law is not equally clear in all instances, especially in terms of whether the requirements of servitude law would be complied with. This dissertation provides a methodology that courts should follow to ensure that the particular right complies with all the requirements. When the subtraction from the dominium test as developed by case law is applied, it is clear that trading rights could amount to real rights because they place a burden on land by means of restricting the owner of the servient tenement’s enjoyment in a physical sense. For purposes of positive and negative praedial trading servitudes, the crucial issue for compliance with the utilitas requirement is that the dominant tenement must be developed, appointed and used in a way that would render the servitude useful for the dominant land on a durable basis. Negative servitudes in restraint of trade are a contested matter based on the fact that they could stir up anti-competitiveness. However, convincing policy arguments exist for the recognition of such servitudes. Moreover, if negative trading rights can be recognised as real rights, legislation will be necessary to ensure that the rights of the parties benefiting from the servitude and affected thereby are balanced adequately. Accordingly, it is concluded that a legislative framework should be adopted containing conditions under which these negative servitudes in restraint of trade should be registered as limited real rights. If a negative trading right does not comply with the requirements for the establishment of a praedial servitude, it is conceivable that a personal servitude may be established. In seeking alternatives to structuring trade agreements, a positive right to trade could be established as either a lease agreement or an innominate contract. It has also been discovered that a restraint of trade agreement could alternatively be set up as a restrictive covenant. After having evaluated all the possible legal constructs, it is concluded that it is preferable to secure a positive right to trade by means of a praedial servitude, personal servitude or a registered long-term lease agreement. This is because an individual’s rights will certainly be better protected in the form of a limited real right because it is stronger than a personal right as it will be enforceable erga omnes. Due to the synonymous content of a restrictive covenant and a negative servitude in restraint of trade, this dissertation shows that a servitude would suffice to secure this negative right. Furthermore, restrictive covenants are precarious in nature and have essentially become redundant in South African law. Therefore, structuring restraint of trade agreements as a servitude would arguably be more suited.