Department of Public Law

Permanent URI for this community

https://scholar.sun.ac.za/handle/10019.1/132

Browse

Now showing 1 - 7 of 7

A common standard of habitability? A comparison between tenants, usufructuaries and occupiers in South African law
(Stellenbosch : Stellenbosch University, 2021-03) Ngwenyama, Lerato Rudolph; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The purpose of this dissertation is to explore whether there is a common (or minimum) standard of habitability between tenants, usufructuaries and occupiers in South African law, and crucially to determine whether a common standard of habitability for these categories of inhabitants in South African law can be derived from the Constitution of the Republic of South Africa, 1996 (“Constitution”). The dissertation aims to also investigate whether the obligation to ensure such a standard of habitability for dwellings in all three categories of inhabitants rests on the owner, the state, or the occupant of the dwelling. To determine whether dwellings are habitable, the dissertation considered the meaning of “habitability” in the context of each type of inhabitant. In the context of tenants, the dissertation found that habitability in terms of the common law is essentially based on the premise that the dwelling to be leased must be in a condition that is reasonably fit for the purpose for which it was rented. However, the common- law fit for the purpose requirement will change to habitability when the Rental Housing Amendment Act 35 of 2014 (“RHAA”) comes into effect. In terms of the RHAA, the habitability requirement implies that the dwelling must be safe and suitable to live in. Furthermore, the dwelling must offer the tenant adequate space, safeguard him or her against the elements and other threats to health, assure the tenant, his household and visitors physical safety, and the dwelling must be structurally sound. In the context of usufructuaries, a dwelling is habitable if it is fit for human habitation. This means that the dwelling must be free from defects and suitable for occupation. In the context of occupiers, habitability is read into constitutional rights such as adequate housing, security of tenure and human dignity. In this regard, a dwelling is habitable for occupiers (in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”)) if occupiers reside in adequate housing that provides secure tenure and accords with standards of human dignity. Concerning the question, on whom the obligation rests to ensure habitability, the dissertation found that in the context of tenants and usufructuaries the obligation to ensure that the property is habitable rests on the owner of the property. Concerning occupiers, it is not clear who must ensure the habitability of the dwelling. It is argued that the obligation to ensure that the property is habitable should primarily be on the owner. This is because the owner is enjoined by section 25(6) of the Constitution through ESTA to accommodate an occupier on his or her property. As such, an owner who permits an occupier to use the property as accommodation incurs an obligation to ensure that the dwelling is habitable. However, where it is unreasonable for the landowner to ensure habitability, for instance, due to financial hardship or lack of resources, the state should be called upon to ensure that occupiers live in habitable conditions. The dissertation concludes that there is currently no common standard of habitability across all three categories. This is because the categories of comparison are so individual that requiring a common standard will not work in all three contexts. However, it is argued that the Constitution forms the minimum standard that eventually forms the baseline in all the categories. This is because the Constitution arguably applies in all categories of comparison. As such, there should, at the very least, be some standard of habitability, which is informed by the Constitution and should be complied with in each individual category of inhabitant.
Compensation for excessive but otherwise lawful regulatory state action
(Stellenbosch : Stellenbosch University, 2015-03) Bezuidenhout, Karen; Van der Walt, Andre; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Department of Public Law
ENGLISH ABSTRACT : Section 25 of the South African Constitution authorises and sets the limits for two forms of legitimate regulatory interference with property, namely deprivation and expropriation. The focus of this dissertation is on the requirement in section 25(1) that no law may authorise arbitrary deprivation of property. According to the Constitutional Court, deprivation is arbitrary when there is insufficient reason for it. The Court listed a number of factors to consider in determining whether there is a sufficient relationship between the purpose to be achieved by deprivation and the regulatory method chosen to achieve it. The outcome of the arbitrariness question depends on the level of scrutiny applied in a particular case. The level of scrutiny ranges from rationality review to proportionality review. Deprivation that results in an excessively harsh regulatory burden for one or a small group of property owners will probably be substantively arbitrary and in conflict with section 25(1). Courts generally declare unconstitutional regulatory interferences with property rights invalid. However, invalidating legitimate regulatory measures that are otherwise lawful purely because they impose a harsh and excessive burden on some property owners may not always be justified if the regulatory measure fulfils an important regulatory purpose. Invalidating excessive regulatory measures may in some instances also be meaningless and may not constitute appropriate relief in vindicating the affected rights. The purpose of this dissertation is to investigate the appropriateness of alternative solutions to invalidating otherwise lawful and legitimate but excessive regulatory deprivations of property. The goal is to identify remedies that allow courts to uphold the regulatory measure and simultaneously balance out the excessive regulatory burden it imposes on property owners. One alternative solution is to transform the excessive regulatory measure into expropriation and require the state to pay compensation to the affected owner. This approach is referred to as constructive expropriation. However, in view of the Constitutional Court’s approach to and the wording of section 25 it seems unlikely that it will adopt constructive expropriation as a solution. Another alternative solution is for the legislature to include a statutory provision for compensation in the authorising statute. Examples from German, French, Dutch and Belgian law show that this approach balances out the excessive regulatory burden and allows courts to uphold the otherwise lawful and legitimate but excessive regulatory statute without judicially transforming the deprivation into expropriation. An overview of South African law indicates that there is legislation that includes non-expropriatory compensation provisions. In cases where the regulatory statute does not contain a compensation provision, the courts might consider reading such a duty to pay compensation into the legislation or awarding constitutional damages. In conclusion, it is possible for the state to deprive owners of property in a manner that may result in an excessive regulatory burden being suffered by one or a small group of property owners if the regulatory purpose is necessary in the public interest, provided that the legislature explicitly or implicitly provides for non-expropriatory compensation in the regulatory statute.
The consequences of a successful estoppel defence : a constitutional analysis
(Stellenbosch : Stellenbosch University, 2021-03) Cloete, Clireesh Terry; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The consequences attributed to estoppel at common law ordinarily entail the suspension of the owner’s rei vindicatio and hedged possession in favour of the successful estoppel raiser. However, remarks made in the Supreme Court of Appeal judgment, Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA), have caused uncertainty in this regard. The uncertainty concerns the question whether the traditional position of suspension and hedged possession subsequent to the case now result in compulsory loss and acquisition of ownership. In light of this uncertainty, this dissertation considers and analyses the consequences ascribed to the situation where a bona fide purchaser successfully raised estoppel against the rei vindicatio, and the question whether development in this regard could be justified based on comparative, policy and constitutional analysis. The dissertation revealed that if the judgment of Oriental Products indeed implies that the estoppel defence automatically results in ownership acquisition, the most suitable category for the acquisition from a doctrinal perspective would be original, rather than derivative acquisition of ownership. Instead of maintaining acquisition of ownership as a consequence of estoppel in its defence form, it is argued that the development of a completely new self-standing mode of original acquisition based on the requirements of estoppel is supported by comparative, policy and constitutional considerations. From a comparative perspective, constructs like estoppel found in foreign jurisdictions give rise to the same issues that estoppel in South African law does, especially when considering whether ownership acquisition via the defence is possible. This finding exposed that it may not be wise to ascribe ownership acquisition consequences to estoppel in its defence form. Strong policy reasons that prefer and justify the development of a new and self-standing mode of original acquisition of ownership in the context of estoppel, as opposed to the uncertain traditional position were found. Significantly, the study showed that this development might be mandated given the current uncertain traditional position being inconsistent with section 25 of the Constitution. Development of a new self-standing mode of acquisition of ownership that complies with the requirements of estoppel would not only pass constitutional muster but would also allow for the old debate around the consequences of a successful estoppel defence to finally be settled.
Constitutional property law in Central Eastern European jurisdictions: A comparative analysis.
(Stellenbosch : Stellenbosch University, 2016-12) Swanepoel, Jan - Harm; Boggenpoel, Zsa-Zsa; Van der Walt, Andre; Stellenbosch University. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : This dissertation investigates three areas of constitutional property law doctrine, namely the concept of property for constitutional purposes, the distinction between deprivation and expropriation and the application of the proportionality principle as a means of determining the legitimacy of interferences with property. More specifically, it is determined how these three doctrinal areas are approached in the established constitutional democracies of Germany, the United States of America, the principles developed by the European Court of Human Rights, as well as relatively young constitutional democracies in Central Eastern Europe and South Africa. The respective German and US law approaches to the three doctrinal areas differ in certain aspects. Interestingly, while their points of departure differ, they reach similar conclusions in some instances. These two jurisdictions are presented as two points on a continuum of approaches to the three doctrinal areas, with the aim of determining whether the constitutional democracies in Central Eastern Europe and in South Africa resemble an approach closer to German or US law. The principles of the European Court of Human Rights regarding the three doctrinal areas are also investigated because they represent an alternative framework that influences the development of constitutional property law in the younger constitutional democracies, particularly in Central Eastern Europe because of their links to the European Union. Generally speaking, in relation to the three doctrinal areas, the dissertation concludes that on the continuum between German and US law, the constitutional democracies in Central Eastern Europe and South Africa seem to follow an approach that resembles German law rather than US law, although no explicit reference is made in this regard.
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.
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.
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.

Browse

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

Results Per Page

Sort Options