Browsing by Author "Van Der Walt, A. J."
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- ItemAlternative strategies to protect the existing view from a property(Juta Law, 2016-03) Kriek, C. A.; Van Der Walt, A. J.In terms of the common law, a South African property owner does not have an inherent right to the existing view from her property over adjoining properties, although the existing view from her property can be protected with a servitude that prevents or restricts building works on adjoining land. Furthermore, there are (weak and inconclusive) indications that the view from a specific property may be protected as an inherent part of landownership in exceptional circumstances, where the view forms an integral part of the use and enjoyment of the property and where the protection of that view was an important consideration in the development of land in that area. Apart from these rather limited circumstances, landowners can generally not claim an inherent right, as part of their ownership, to uphold the undisturbed prospect from their land against the wish of neighbouring owners to develop and build on their land.
- ItemApplication of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)(Juta Law, 2014-04) Brits, R.; Van Der Walt, A. J.Direct execution of a judgment debt against immovable property - including those burdened with mortgage bonds - is permissible in the high court on the condition that "where the property sought to be attached is the primary residence of the judgment debtor, no writ [of execution] shall be issued unless the court, having considered all the relevant circumstances, orders execution against such property." The amended rule is a result of section 26 of the Constitution of the Republic of South Africa, 1996 and reflects the principle that was established earlier in Jaftha v Schoeman; Van Rooyen v Stoltz with regard to the magistrates' courts' execution process. The housing clause provides as follows: "(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." To give effect to debtors' rights under section 26(1), the constitutional court held in the Jaftha case that a clerk of the court may no longer grant judgments by default against primary residences. Rather, a magistrate must grant the order and may do so only after all the relevant circumstances have been considered. The case involved insignificant, unsecured debts that were enforced against vulnerable debtors' state-subsidised houses. It was therefore not immediately apparent that section 26 would apply also in the general context of mortgage bonds being enforced in the high courts.
- ItemApplication of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 2)(Juta Law, 2014-01) Brits, R.; Van Der Walt, A. J.The proportionality test to determine the justification of execution against a home revolves around various contextual considerations. Yet, it appears that the enquiry will largely centre on the size of the outstanding debt and – significantly – of the actual arrears, as compared to alternative ways that are available to satisfy the claim for either or both of these amounts. For mortgage law to comply with the proportionality standard, the process must include a way to have recourse to reasonable, creative alternatives before a home is sold in execution. In terms of common law doctrine, a mortgage is a limited real right that the creditor holds in the debtor’s hypothecated land. The most prominent element of this property right is the creditor’s entitlement, when the debtor defaults, to call up the bond and insist on the sale of the burdened property to settle the debt. Because the mortgagee has a right to execute against that specific property on the basis of its limited real right in that property, it has no duty to first seek execution against other assets, such as movables or non-primary residences.
- ItemThe case in favour of substantive tenure reform in the landlord-tenant framework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight(Juta Law, 2011-01) Maass, Sue-Mari; Van Der Walt, A. J.The tenure reform programme, which forms part of the land reform programme, consists of two strategies. These are, first, the transformation of weak tenure through the implementation of dedicated structural reforms, and secondly, the development of general anti-eviction provisions that prevent arbitrary forced removals, which were traditionally associated with apartheid land law (A J van der Walt Constitutional Property Law (2005) 309-10).
- ItemThe constitutionality of acquisitive prescription : a section 25 analysis(Juta Law, 2012-01) Van Der Walt, A. J.; Marais, E. J.Acquisitive prescription (“prescription”) is one of the original methods of acquisition of ownership in South African law. No assistance is required from the original owner; ownership vests in the possessor ex lege the moment he satisfies all the requirements for prescription. Prescription law was first consolidated by the Prescription Act 18 of 1943 (the 1943 act), but the Prescription Act 68 of 1969 is now the main authority in this context. The common law still remains an important source, as neither of the prescription acts codifies this field of law.
- ItemDevelopment of the common law of servitude(Juta Law, 2013-01) Van Der Walt, A. J.This article explores the implications of the Constitution for the development of the common law of servitude. Following from an analysis of two recent servitude cases in which the courts might have developed the law of servitude for doctrinal or policy reasons (the court controversially decided in both cases that development was unnecessary because the desired result could be reached on the basis of the law as it stands), it will be argued that the question whether the common law should apply to a particular dispute at all and whether it should be developed (because its outcome is for some reason unacceptable) are constitutional issues and not purely common-law ones. Both questions have to be answered in view of fundamental constitutional principles such as the supremacy of the Constitution, the single-system-of-law principle enunciated by the Constitutional Court, and the subsidiarity principles developed by that court. Having argued that this holds even in instances where no legislation applies to the dispute, the article distinguishes between situations where the decision to develop the common law follows from direct constitutional obligations and situations where that decision is taken purely on policy or doctrinal grounds. The final section of the article identifies section 25 issues possibly resulting from a decision to develop the common law of servitude and indicates how those issues can be approached in view of the FNB methodology for the analysis of section 25 disputes.
- ItemThe enforceability of tenants rights (part 1)(Juta Law, 2012-01) Van Der Walt, A. J.; Maass, S.The purpose of the article is ultimately to align our current understanding of the nature of tenants' rights, according to basic common-law property principles, with their nature and role in the new constitutional dispensation. We consider this a worthwhile exercise in view of the question, emerging from constitutional law rather than property law or landlord-tenant law, whether the holders of short-term and unregistered long-term residential tenancies should enjoy the benefits of section 25(6) of the 1996 constitution. Section 25(6) provides that a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an act of parliament, either to tenure which is legally secure or to comparable redress. If this provision applies to holders of short-term residential tenancies, tenants whose current position is particularly vulnerable because of past racial discrimination might be able to challenge current landlord-tenant legislation for being inadequate in view of the constitutional provision.
- ItemExtending the lessors tacit hypothec to third parties property(Juta Law, 2015-01) Van Der Walt, A. J.; Siphuma, Nzumbululo SilasIn case law the lessor’s tacit hypothec has been extended to cover movable property belonging to a third party. This extension of the hypothec is reasonably well established, but there is some uncertainty about the reasons or justifications for it. Two seemingly contradictory explanations for the extension have been raised in the literature, namely implied consent and estoppel. Upon closer scrutiny the former reason appears in fact to refer to (judicially) imputed rather than implied consent. Provided that the consent is judicially attributed to the third-party owner of the movables on the ground that she should have been aware of the whereabouts of her property and should have taken the necessary and reasonable steps to protect it against the landlord’s hypothec (for example by informing the landlord of her right in the property), this seems to be an acceptable explanation for the extension of the hypothec. The same can be said for estoppel in cases where the requirements for estoppel are actually proved, particularly if fault (negligence) is required and if it is proven that the owner of the movables could have disabused the landlord of the false impression that the movables belonged to the tenant, but failed to do so. From a policy perspective, it can therefore be said that the extension of the hypothec to movables that belong to a third party is justified, provided that the reasons for the extension (either imputed consent or estoppel) are understood correctly, and the accompanying requirements are applied correctly and strictly. From a constitutional property perspective, the deprivation of property that extension of the hypothec brings about when a third party’s property is affected by the landlord’s right to attach and sell the movables would be constitutionally unassailable (not arbitrary in terms of s 25(1) of the Constitution) if there is sufficient reason for the deprivation. Provided the requirements are applied correctly and strictly, in line with the policy explanations (imputed consent or estoppel) that explain the extension satisfactorily, the deprivation of a third party’s property that results from extension of the hypothec should generally speaking not be arbitrary, and thus should be constitutionally uncontroversial. This conclusion contradicts views to the contrary that have been expressed in the academic literature.
- ItemProperty, social justice and citizenship : property law in postapartheid South Africa(Juta Law Publishing, 2008-03) Van Der Walt, A. J.This article examines the question whether property law can and should foster democratic forms of governance, advance social justice, promote citizenship and build sustainable and supportive communities. The question is particularly relevant in post-apartheid South Africa, since apartheid land law worked in exactly the opposite direction. “Grand apartheid” undermined what would normally be considered democratic forms of governance and citizenship because it institutionalised discriminatory and socially divisive and destructive agricultural and urban land use policies and management systems, thereby causing or exacerbating overcrowding, social displacement and economic marginalisation. At the same time, the discriminatory landuse and – management laws and practices of “petty apartheid” systematically destroyed any possibility of fostering social justice, good citizenship and the building of sustainable and supportive communities. The advent of the post-1994 democratic dispensation in South Africa and the concomitant constitutional directives to eradicate the legacy of apartheid and to promote the values of human dignity, equality and freedom present a felicitous opportunity to ask whether the post-1994 political, constitutional and social dispensation can reverse the legacy of apartheid by, among other things, fostering democratic forms of governance and citizenship and advancing social justice and the building of sustainable and supportive communities.
- ItemPublic purpose and changing circumstances : Harvey v Umhlatuze Municipality and Others 2011 (1) SA 601 (KZP)(Juta Law, 2012-01) Van Der Walt, A. J.; Slade, B. V.
- ItemReconciling the state's duties to promote land reform and to pay just and equitable compensation for expropriation(Juta Law, 2006-01) Van Der Walt, A. J.The apparent conflict between the state’s duties to promote land reform (specifically equitable access to land, as provided for in s 25(5) of the Constitution, 1996) and to pay just and equitable compensation for expropriation (s 25(2) and (3) of the Constitution) has been in the news recently because of allegations that the government’s commitment to the willing-seller/willing-buyer principle stood in the way of effective and speedy land reform. The government has been criticized in this respect both for its apparent hesitation to use its expropriation powers for land reform purposes and for its seeming unwillingness to speed up land reform by expropriating land against compensation at less than market value.
- ItemReplacing property rules with liability rules : encroachment by building(Juta Law, 2008-12) Van Der Walt, A. J.According to South African common law, movables attached permanently to land lose their independence and become part of the land; the landowner 'acquires' ownership of them through accession. In encroachment cases it has accordingly always been said that the affected landowner could demand that the encroaching structures be removed, but since the decision of the Orange Free State High Court in Rand Waterraad v Bothma 1997 (3) SA 120 (O) it appears as if the South African courts might be inclined, in certain instances, to leave the encroachment in place and order the encroaching neighbour to pay compensation instead. At least in some cases, this replacement of a property rule with a liability rule might appear just and it generally seems to conform to trends in other modern legal systems. In some cases South African courts have gone even further and ordered that the land affected by encroachment be transferred to the encroacher against payment of compensation. Quite apart from the fairness of replacing injunctive relief with compensation, this raises the further question whether such a forced sale of land is legitimate in terms of s 25 of the South African Constitution.
- ItemSection 25 vortices (part 1)(Juta Law, 2016-10) Van Der Walt, A. J.Roux introduced the notion of the “arbitrariness vortex” to illustrate his observation that the constitutional court’s FNB decision could “telescope many of the issues that might have been addressed (and in comparative constitutional law are addressed) at other stages of the property clause inquiry into [the arbitrariness] stage” or, as he describes it elsewhere, of “sucking the [whole property] inquiry into the arbitrariness test”. Crucial to the idea of a vortex is that what is perceived as the crux of a section 25 dispute, namely the balancing of individual property interests and the public interest, is “sucked into” just one stage or part of a section 25 challenge, instead of taking place in or being spread over several discrete stages or parts of the inquiry.
- ItemSection 25 vortices (part 2)(Juta Law, 2016-12) Van Der Walt, A. J.Even when he first identified the arbitrariness vortex, Roux pointed out that courts may well not follow the methodology set out in the FNB case strictly and that deviations might reduce the vortex effect in some cases. In some subsequent decisions, the constitutional court did follow its approach in the FNB case, but it has become clear that the arbitrariness vortex is not going to materialise in a pure form or consistently and that the court will indeed deviate from the FNB methodology in ways that will at least water the vortex effect down. Perhaps more surprisingly, subsequent decisions have also shown that the court will deviate from the FNB methodology in ways that might create new vortices, centred on other parts of the section 25 inquiry.
- ItemTransformative constitutionalism and the development of South African property law (part 1)(Juta Law, 2005-01) Van Der Walt, A. J.One of the most complicated and controversial questions in contemporary South African legal theory is whether (and how, and why) constitutional provisions - particularly the rights provisions in the bill of rights - can and should permeate (or affect the development of) private law. In one sense, this may seem like just another instance of the old problem of properly articulating the relationship between public law and private law, but I intend to analyze the problem with reference to the more problematic, dynamic aspirations of what Klare calls "transformative constitutionalism". In what has become an influential article in South African legal discourse, Klare described transformative constitutionalism as "a long-term project of constitutional enactment, interpretation, and enforcement committed ... to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction." In this context, the project of defining the effect of the constitution on private law assumes urgency and significance beyond traditional (spatially conceived) debates about the "proper" relationship between public and private law. In what follows I will analyse the effect of the constitution on private law from Klare's dynamic perspective of transformative constitutionalism, and therefore a few introductory remarks are necessary to sketch out some of my assumptions and hypotheses about the dynamics of legal change in the South African context.
- ItemTransformative constitutionalism and the development of South African property law (part 2)(Juta Law, 2006-01) Van Der Walt, A. J.South African courts and academic commentators had relatively frequent re- course to German theory on the application issue during the early stages of constitution writing and the development of a new constitutional jurispru- dence128 but now, when the debate seems to be moving into a new paradigm, German literature and case law are strangely neglected. German constitutional theory is a suitable source of comparative analysis for the South African debate about the effect of the constitution on private law, because it has a strong, well- developed system of private law that is distinguished quite strictly from public law, but not unlike South Africa it also has a constitution that was adopted with clearly transformative intentions subsequent to a political catastrophe. Moreover, like South African law, German law clearly accepts that private law is not isolated from the constitution, and that the constitution can in principle (and does in fact) influence or have an effect on private law.