Masters Degrees (Public Law)

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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Boggenpoel, Zsa-Zsa"

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    A critical analysis of the approach of the courts in the application of eviction remedies in the pre-constitutional and constitutional context
    (Stellenbosch : Stellenbosch University, 2016-12) Cloete, Clireesh Terry; Boggenpoel, Zsa-Zsa; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law
    ENGLISH ABSTRACT : In the pre-constitutional era courts had a very specific approach to eviction remedies. This approach was the result of legal doctrine that regulated the concept of ownership, eviction remedies and standard practices of presiding officers as entrenched in rules of interpretation and procedural rules. The advent of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) transformed the eviction landscape by way of section 26(3) of the Constitution and the subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). After the first Constitutional Court judgment Port Elizabeth Municipality v Various Occupiers (2005 (1) SA 217 (CC) it became apparent that the PIE not only replaced the pre-constitutional eviction remedies but in fact also required that the deep-level assumptions of a landowner’s right to evict and the standard practices associated with the courts’ role in eviction cases were also revolutionised. The pivotal consideration of this study, in light of these developments of eviction law brought about by the constitutional dawn, is whether the courts are indeed approaching and applying PIE in line with their mandate. This is critical as a superficial shift will only frustrate the transformative thrust of the Constitution in the context of eviction. The study of the courts’ approach to eviction remedies in the pre-constitutional and constitutional context has shown that section 26(3) and PIE have indeed transformed the eviction landscape on a theoretical basis. In this regard, the courts’ approach to eviction remedies has changed from conservative, formalistic and passive in the pre-constitutional era to context-sensitive, flexible and proactive. However, some courts, especially the lower courts, are still failing to apply PIE as mandated. This is due to the continued pre-constitutional deep-level assumptions of the strength of the landowner’s right to evict, combined with procedural practices that form part of their pre-constitutional legal culture. Interestingly, the specific focus on landowners in this study indicated that this failure on the part of the court is surprisingly problematic for landowners.
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    Development of the law regarding inaedificatio : a constitutional analysis
    (Stellenbosch : Stellenbosch University, 2014-12) Sono, Nhlanhla Lucky; Van Der Walt, Andries Johannes; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Department of Public Law.
    ENGLISH ABSTRACT: Inaedificatio entails that movables that have been permanently attached to land through building cease to exist as independent things and become part of the land. Courts have adopted different approaches over time to investigate whether or not inaedificatio had occurred. It is sometimes said that courts have moved away from the so-called traditional approach, which focused on the objective factors, to the so-called new approach, which places more emphasis on the subjective intention of the owner of the movables. This thesis analyses the applicable case law and concludes that there is inadequate proof of such a shift since both older cases associated with the traditional approach and later cases associated with the new approach emphasise the intention of the owner of the movables to establish whether accession had taken place. However, the case law does allow for a cautious different conclusion, namely that a certain line of both older and new cases emphasise the owner of the movable’s intention for commercial policy reasons, specifically to protect ownership of the movables in cases where ownership had been reserved in a credit sale contract. Constitutional analysis of these conclusions in view of the FNB methodology indicates that the courts’ decision to hold that accession had in fact occurred in cases that do involve permanent attachment of movables to land will generally establish deprivation of property for purposes of section 25(1) of the Constitution, but such deprivation would generally not be arbitrary since there would be sufficient reason for it. However, in cases where the courts decide that there was no accession because ownership of the movables had been reserved subject to a credit sale agreement, there is no deprivation of property because the landowner, who is the only one who might complain about the decision, could not prove a property interest for purposes of section 25(1). Moreover, the courts’ decision that accession had either occurred or not does not amount to expropriation under section 25(2) of the Constitution because there is no common law authority for expropriation. Therefore, the principal conclusion of the thesis is that the courts’ decision that accession had either occurred or not would generally be in line with the property clause of the Constitution.
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    Underutilisation of expropriation in the land redistribution context : current and potential obstacles
    (Stellenbosch : Stellenbosch University, 2020-12) Barden, Charissa; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Expropriation in the context of land reform generally, and redistribution more specifically, is a highly contentious topic in South Africa today. The effects of colonisation and apartheid have left an impact on current land distribution, social identity and economic goals, particularly to the detriment of the poor. These lasting effects signify the need for an effective land redistribution policy in the constitutional era and is a multidimensional issue. A notable mechanism of achieving the redistribution of land is through the utilisation of land expropriation. However, since the Constitution of the Republic of South Africa, 1996, has come into effect, the land redistribution policy has been slow in reaching its goals, with limited results. Furthermore, the mechanism of expropriation has not been greatly utilised as a means of reaching redistribution goals. The gap between expropriation and land redistribution is fraught with uncertainty in how to use expropriation as a mechanism to achieve land redistribution, which is impacted by a multitude of factors. This uncertainty is aggravated by the changing policies and unclear goals of the redistribution programme, which has potentially resulted in the underutilisation of expropriation. In light of this gap and the limited number of expropriations which have taken place for redistribution purposes, this thesis investigates potential hurdles and hindrances contributing to the underutilisation of expropriation. The thesis examines potential obstacles arising from the contextual understanding of expropriation in the redistribution framework, the administrative law considerations applicable to expropriation in redistribution, and the compensation requirement as it applies to expropriations currently. This investigation makes use of an integrated timeline of expropriation and redistribution developments, the legitimate justification of expropriation and a comparison between market-led land acquisition and compensation for expropriation. Thus, this thesis concludes by highlighting many, though not all, of the potential issues that hinder the utilisation of expropriation in redistribution.