Browsing by Author "Dhliwayo, Priviledge"

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    A constitutional analysis of access rights that limit landowners' right to exclude
    (Stellenbosch : Stellenbosch University, 2015-12) Dhliwayo, Priviledge; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Department of Public Law
    ENGLISH ABSTRACT : The right to exclude is portrayed either in a strong-absolute sense or a qualified sense. According to the South African doctrinal notion of ownership, ownership and the right to exclude are exercised and protected insofar as the law permits. The law sometimes grants non-owners access rights to land without the landowner’s prior permission or consent and this places substantial limitations on the right to exclude. The research problem addressed in this dissertation pivots on the relationship between exclusion and access rights. It provides an overview of the theoretical and doctrinal perspectives on the existence of limitations in the form of access rights, deriving from different sources and for different reasons, and considers possible justifications for the limitations. This dissertation shows that there is a wide range of limitations originating from different sources, with the result that limitations are to be expected and cannot be seen as exceptions. In this regard, the dissertation considers the justification issue from a constitutional perspective to determine whether it is necessary to justify all limitations on the right to exclude. From this perspective, justification for a limitation is not based on normative grounds, but instead focuses on the authority and reason for the limitation and its effect on the affected owner. The point is that limitations on the right to exclude are normal in a legal and constitutional system within which property functions and of which limitations are part. Case law and examples dealing with the conflict between exclusion and access rights indicate that exclusion of non-owners is not always the preferred outcome and that it is not prioritised abstractly. This suggests that the right to exclude is relative and contextual in nature.
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    Tenure security in relation to farmland
    (Stellenbosch : Stellenbosch University, 2012-12) Dhliwayo, Priviledge; Van der Walt, A. J.; Pienaar, J. M.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Section 25(6) of the Constitution of the Republic of South Africa 1996 guarantees legally secure tenure to persons whose tenure of land is insecure as a result of past racially discriminatory laws and practices. The Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Land Reform (Labour Tenants) Act 3 of 1996 (LTA) were enacted to give effect to section 25(6), read with section 25(9) of the Constitution, with the aim to improve and strengthen tenure security in rural areas, including farmland. However, the general opinion amongst scholars is that these efforts to strengthen tenure security have generally failed to ensure legally secure tenure on farmland. To this effect, the Draft tenure security policy and Draft Land Tenure Security Bill (2010) were formulated to introduce new measures to improve tenure security on farmland. This gives a clear indication that eighteen years after the government embarked on an all-encompassing land reform programme, its intended goals have not yet been achieved, resulting in the continued challenges faced by farm dwellers. The thesis discusses the inherent challenges associated with tenure security on white-owned commercial farmland, with specific reference to government‟s obligation to improve tenure security; the nature of farm dwellers‟ rights; and the shortcomings of the existing policy and legislative measures. A historical overview explains the effects of the apartheid land holding system that underpins the need for tenure reform, while an analysis of constitutional and international law sets out the guiding principles on tenure security. An analysis of the applicable policy and legislative measures establishes the causes of continued tenure insecurity on farmland, which include shortcomings in the main legislative measures; failure by the legislature to translate policy into legislation; misinterpretation and misapplication of legislation by the courts; and lack of effective implementation. The thesis considers the impact of the Draft tenure security policy and the Bill in light of the challenges facing farm dwellers and concludes that tenure security in relation to farmland remains insecure and government still falls short of the appropriate solutions to address the tenure security challenges on farmland.