Browsing by Author "Kotze, Tina"

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    Developing criteria for the identification of suitable agricultural land for expropriation and redistribution in South Africa : lessons learnt from Namibia
    (Juta, 2021-11-01) Kotze, Tina
    There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, non-arbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.
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    Effective relief regarding residential property following a failure to execute an eviction order
    (Stellenbosch : Stellenbosch University, 2016-12) Kotze, Tina; Pienaar, J. M.; Stellenbosch University. Faculty of Law. Dept. of Public Law
    ENGLISH ABSTRACT : The eviction process relating to immovable property utilised for residential purposes can broadly be subdivided into three phases: the procedural; adjudicatory and execution phases, respectively. The procedural stage is characterised by the necessary procedural steps that need to be taken by an owner (or person in charge) or organ of State, in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) in order to launch an application for eviction of unlawful occupier(s) from private or public land. The adjudicatory phase entails a substantive determination by the courts whether it is appropriate, just and equitable, after considering all the relevant circumstances of the case as required by PIE, to grant an eviction order. The execution phase is only applicable when an eviction order was granted by the court. In line with PIE, just and equitable dates, depending on the facts and circumstances of the matter, are also set for (a) eviction; and (b) the execution of the eviction order. Where the land or property is vacated voluntarily on the date set, the eviction process is complete. However, when the land or property is not vacated as required, the eviction order is executed on the further date, as set out in the eviction order. This execution phase is invariably effected with the assistance of the South African Police Force or other State agents or officials and involves the removal of unlawful occupiers from the land or property in question. However, failure by the State to execute eviction orders has become more prominent and therefore, increasingly, contentious. As a result, the land owner is left without a remedy to protect his or her right to property, whereas the unlawful occupier’s position, with regard to access to land and adequate housing, remains in limbo - leaving both parties without an effective remedy. In light of the above, the objective of this study is twofold. Firstly, the research sets out to establish what constitutes effective relief regarding residential property, following a failure to execute an eviction order granted in terms of PIE. In this regard, effective relief, in the context of evictions pertaining to residential property, constitutes appropriate relief for all affected parties that can be executed within a reasonable time. Secondly, the aim is to analyse whether or to what extent a structural interdict; constitutional damages and/or a contempt of court order could be regarded as effective relief, both from the perspective of the land owner and the unlawful occupier(s), given the conflicting rights and interests of the respective parties. The thesis also considers the role and involvement of the State as a facilitator and/or as an owner in the process of eviction in order to determine what would be regarded as effective relief from that perspective. The impact of the respective remedies on the abovementioned parties is analysed in order to determine whether the relief granted can be regarded as “effective relief” relating to residential property, following a failure to execute an eviction order. In this regard various recommendations are suggested, relating to the choice of oversight model and the formulation of the structural interdict. In relation to alternative relief, it is suggested that PIE either be amended or that a framework for direct constitutional damages be developed by the courts. Presently, and in conclusion, it is clear that a combination of remedies may need to be employed in order to provide effective relief where eviction orders are not executed.
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    The regulation of agricultural land in South Africa : a legal comparative perspective
    (Stellenbosch : Stellenbosch University, 2020-03) Kotze, Tina; Pienaar, J. M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: After 25 years of democracy, the legacy of land dispossession has not been redressed. The unequal distribution of agricultural land in South Africa is a direct consequence of the racially discriminatory laws, policies and practices which were in place for the largest part of the twentieth century. Accordingly, one of the key challenges the post-1994 government faced was how to address the unequal distribution of land –in general, but also specifically in relation to land for agricultural purposes. While there is consensus on the need for redistribution of agricultural land, much controversy persists around howto redistribute land so as to meet the various objectives, including a more equitable and diversified distribution of land ownership, food security, sustainability, affordability and effective implementation of relevant measures, undergirded by constitutionality. Accordingly, the question is not whether South Africa should pursue agricultural land reform, but rather howSouth Africa should go about it, specifically concerning the drafting and implementation of pertinent policy and legislative measures. In this process agricultural productivity, development and food security may not be compromised and mechanisms employed have to be aligned with constitutional imperatives, including the parameters provided for in the property clause, section 25 of the Constitution. The overarching aim of this dissertation is therefore to consider the regulation of agricultural land in South Africa from a land reform, specifically redistribution, perspective in order to assess whether current mechanisms employed as well as envisaged mechanisms are aligned with the Constitution, whether the approaches to acquiring agricultural land, flowing from the extant and envisaged regulatory framework, are likewise constitutional and whether, combined, an effective legal framework for redistribution in South Africa exists. With respect to the latter, efficacy for purposes of this study is linked to the legal dimension only and is not focussed on agricultural resources and components –in the broadest sense.For purposes of this dissertation, a comparative perspective is useful. It may be insightful to consider how Namibia and India (a) conceptualise the concept of agricultural land; (b) regulate agricultural land for redistribution purposes; (c) acquire agricultural land for redistribution and; (d) redistribute agricultural land. In light of the above, various recommendations are made, relating to a: (a) proposed definition of “agricultural land”; (b) legal framework for the regulation of agricultural land; and (c) legal framework for the redistribution of agricultural land in South Africa.