Doctoral Degrees (Public Law)

Permanent URI for this collection

https://scholar.sun.ac.za/handle/10019.1/3635

Browse

Now showing 1 - 20 of 69

Acquisitive prescription in view of the property clause
(Stellenbosch : Stellenbosch University, 2011-12) Marais, Ernst Jacobus; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Acquisitive prescription (“prescription”), an original method of acquisition of ownership, is regulated by two prescription acts. Prescription is mostly regarded as an unproblematic area of South African property law, since its requirements are reasonably clear and legally certain. However, the unproblematic nature of this legal rule was recently brought into question by the English Pye case. This case concerned an owner in England who lost valuable land through adverse possession. After the domestic courts confirmed that the owner had lost ownership through adverse possession, the Fourth Chamber of the European Court of Human Rights in Strasbourg found that this legal institution constituted an uncompensated expropriation, which is in conflict with Article 1 of Protocol No 1 to the European Convention on Human Rights and Fundamental Freedoms 1950. This judgment may have repercussions for the constitutionality of prescription in South African law, despite the fact that the Grand Chamber – on appeal – found that adverse possession actually constitutes a mere (constitutional) deprivation of property. Therefore, it was necessary to investigate whether prescription is in line with section 25 of the Constitution. To answer this question, the dissertation investigates the historical roots of prescription in Roman and Roman-Dutch law, together with its modern requirements in South African law. The focus then shifts to how prescription operates in certain foreign systems, namely England, the Netherlands, France and Germany. This comparative perspective illustrates that the requirements for prescription are stricter in jurisdictions with a positive registration system. Furthermore, the civil law countries require possessors to possess property with the more strenuous animus domini, as opposed to English law that merely requires possession animo possidendi. The justifications for prescription are subsequently analysed in terms of the Lockean labour theory, Radin’s personality theory and law and economics theory. These theories indicate that sufficient moral and economic reasons exist for retaining prescription in countries with a negative registration system. These conclusions are finally used to determine whether prescription is in line with the property clause. The FNB methodology indicates that prescription constitutes a non-arbitrary deprivation of property. If one adheres to the FNB methodology it is equally unlikely that prescription could amount to an uncompensated expropriation or even to constructive expropriation. I conclude that prescription is in line with the South African property clause, which is analogous to the decision of the Grand Chamber in Pye.
An analysis of the regulation of defence procurement in South Africa
(Stellenbosch : Stellenbosch University, 2023-12) Heydenrych, Ernst; Quinot, Geo; Nel, Michelle; Nel, Michelle (Military lawyer); Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT : There is considerable scholarly work within the context of civil public procurement in South Africa. Currently, public procurement in South Africa also finds itself within a changing regulatory environment considering the replacement of the 2017 Preferential Procurement Regulations with the 2022 Preferential Procurement Regulations in January 2023, as well as the Public Procurement Bill, tabled in Parliament in June 2023. However, a major gap in local literature on public procurement is in the area of defence procurement. This is concerning because of the large defence budget and generally opaque nature of the defence sector. In this regard, the transparency requirement of section 217 of the Constitution of the Republic of South Africa, 1996 stands out and it is vital to interrogate defence procurement in terms of South African public procurement law. The challenges in South African defence procurement are well-known – from the Arms Deal in 1999 through to the procurement of the immune booster Interferon from Cuba in 2020 – thus showing a need for close attention to defence procurement regulation. Accordingly, this dissertation investigates what role the requirement of transparency fulfils within the regulation of defence procurement in South Africa. Will national security and secrecy always prevail, or will there be instances where transparency trumps secrecy? The study starts by carefully explaining the difference between the civilian and military working environments, the impact of military discipline, hierarchies and lines of command and control, as well as certain unique features such as the roles fulfilled by the Minister of Defence and Military Veterans, Secretary for Defence, Chief of Logistics (“C Log”) and Chief of the South African National Defence Force. The study then defines defence procurement, sets out its two categories (category 1 acquisition and category 2 procurement/supply chain management), and compares ordinary South African public procurement with the Department of Defence’s acquisition and supply chain processes. The study also places focus on the role of Armscor, the acquisition agency of the DoD, and the role it plays in conjunction with the Defence Matériel Division within the context of acquisition or category 1 procurement. Hereafter, the study analyses the defence procurement system by identifying seven widely encountered trends or challenges through method triangulation, sets out the Department of Defence’s approach to consequence management and transparency and evaluates the system’s compliance with the requirement of transparency in section 217(1) of the Constitution. Finally, based on this evaluation, the study discusses the concept of civil-military relations and the oversight role fulfilled by, among others, Parliament, the Military Ombud, the Defence Inspectorate and the Auditor-General of South Africa with regard to their ability to extract accountability in respect of procurement by the DoD in terms of both answerability and sanction as constitutive elements of accountability. The study concludes with several findings and recommendations for reform of South African defence procurement regulation, especially within the context of transparency.
Ancillary rights in servitude law
(Stellenbosch : Stellenbosch University, 2015-12) Van Staden, Sonja; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Department of Public Law
ENGLISH ABSTRACT :Servitudes are regulated in South African law by the principles of the common law. One set of principles regulate servitudes ex ante – limiting and controlling the establishment of servitudes. Another set of principles regulate the continued relationship between the parties. They include the principle that a servitude, once granted, includes all that is necessary for the effective exercise of the servitude by the dominant proprietor and the principle that requires reasonable exercise of the servitude rights with due regard for the interests of the servient proprietor. The problem lies in determining the scope of a servitude and establishing whether “what is necessary for the effective exercise of the rights” is a flexible concept, especially when flexible interpretation of servitudes creates tension between the two principles mentioned above. The approach of South African courts is to maintain stability in the system of property law, thus emphasising the principle that servitudes are to be interpreted strictly. A comparative and theoretical overview indicates that a recent shift has taken place in the regulation of servitudes from an ex ante approach focussing on security and stability of property rights, towards a flexible regulation of servitudes by way of ex post controls that allow amendment or termination of obsolete or undesirable burdens on land. This shift is underpinned by the reality of changed circumstances and the need for servitudes, as long-standing property arrangements, to adapt to changes so as to ensure the productive use of land as a resource. With reference to Dutch, Scots, English and Louisiana state law, this dissertation considers ways to incorporate flexibility in servitude law, usually by way of statutory intervention. However, in South African servitude law the possibility of statutory intervention is slim. Accordingly, innovative measures must be developed within the common law framework. The need for flexibility in South African servitude law can be satisfied by development of the common law in the form of ex post application of the existing common law principles. If these principles are applied in a manner that takes account of the current context of the servitude, many of the problems created by the view that servitudes are static and unchangeable can be solved. If properly implemented, this can allow for the amendment of existing entitlements or acknowledgement of new ancillary entitlements, without compromising the security of property rights.
The application of the principle of complementarity in the relationship between the African Court and the African Commission under the Regional African Human Rights System
(Stellenbosch : Stellenbosch University, 2021-12) Thomas, Irene Nyakagere; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The principle of complementarity has great potential in enhancing the engagement between the African Commission on Human and Peoples Rights (African Commission) and the African Court on Human and Peoples Rights (African Court) to improve and strengthen the protection of human rights on the African continent. As observed in this research, the shared and overlapping mandates of these institutions can only be effectively coordinated if they work together in a planned, structured, and constructive way. As argued in this research, a well informed and developed application of the principle of complementarity could aid in achieving the overlapping mandates of these institutions, enhance access to justice within the regional African human rights system and facilitate the maximisation of the limited financial resources allocated to the two institutions. The 17 years of co-existence between the African Commission and African Court have witnessed various efforts geared towards activating the principle of complementarity. This includes case transfers and reform of the Rules of Procedure of the two institutions. However, the application of complementarity in the relationship between the African Commission and the African Court still faces serious challenges. The main hurdles being the ambiguity of, and minimum recourse to the complementarity provisions by the two institutions. In a quest to unlock the potential of the principle of complementarity, this research adopts a theoretical framework that speaks not only to the legal component of the discourse but also to its organisational component. The analysis is informed by a fusion of reinforcement theory and relevant elements of organisational theory. To establish a frame of reference to guide the analysis of the application of the principle of complementarity in the relationship between the African Commission and the African Court the research also analyses other complementary institutional arrangements in international law such as the United Nations’ human rights compliance mechanisms, the International Criminal Court system, the Inter-American human rights system as well as the European human rights system. The research findings demonstrate the need for the incorporation of the organisational component in the deliberations and strategies adopted by the two institutions with regard to their complementary relationship. By drawing inspiration from other regional and international complementary institutional arrangements, the research further highlights that the lack of express articulation of the modes of engagement in the complementarity arrangement between the African Commission and the African Court does not bar the development of mutual enforcement strategies. Instead, it could inspire flexibility and progressive transformation to ensure that the normative framework does not restrict complementarity.
An assessment of constitutional guarantees of religious rights and freedoms in South Africa
(Stellenbosch : Stellenbosch University, 2002-03) Gildenhuys, J. L.; Du Plessis, L. M.; Stellenbosch University. Faculty of Law. Dept of Public Law.
ENGLISH ABSTRACT: The central issue which is considered in this thesis is the meaning of the constitutional guarantees of religious rights and freedoms in South Africa. In other words, it is concerned with the functions of the state, through its laws or conduct, in respect of religion and with its relationship towards the institutional church or religious community. It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The "essential rights and freedoms of religion" which constitute this "bundle" are identified in the context of the historical development of religious rights. It is shown that religious rights theories have developed in the West which include concepts of freedom of conscience, the right to freely exercise religion, accommodation of pluralism of a confessional and institutional nature, equality of all religions before the law, nondiscrimination on the grounds offaith, institutional separation of church and state and some separation of state (or law) and religion. It is maintained that no single principle could by itself guarantee religious freedom and that these rights and freedoms are mutually. supportive of and mutually subservient to the highest goal of guaranteeing religious freedom. These essential rights and freedoms are therefore treated as constituting minimum standards for the protection of religious freedom and it is argued that religious freedom as protected in the South African Constitution should be interpreted to incorporate these multiple principles. It is shown that, prior to the promulgation of the interim Constitution the essential rights and freedoms of religion were not adequately protected in South Africa and that the constitutional entrenchment of these essential religious rights was necessitated by various factors in the preconstitutional South African society. The position with regard to religious rights and freedoms in post-Constitutional South Africa is considered by briefly sketching the broader constitutional context and by assessing the constitutional clauses protecting religious rights to determine whether the essential rights are protected. The religious rights provisions in the Constitution are analysed in detail in order to determine how they should be interpreted and implemented to ensure adequate protection of the essential rights and freedoms of religion in South Africa.
A capabilities approach to the judicial review of resource allocation decisions impacting on socio-economic rights
(Stellenbosch : Stellenbosch University, 2015-12) Van der Berg, Shanelle; Liebenberg, Sandra; Quinot, Geo; Stellenbosch University. Faculty of Law. Department of Public Law
AFRIKAANSE OPSOMMING : Die verwesenliking van sosio-ekonomiese regte, dikwels deur middel van administratiefreg, is ŉ voorvereiste van kritieke belang vir die transformasie van die Suid Afrikaanse samelewing. Hulpbronne is integraal tot die verwesenliking van sosio-ekonomiese regte. Hulpbronne is egter beperk. Moeilike toedelingsbesluite moet dus gemaak word aangesien die vervulling van verskillende regte, en die kort- en langtermyn programme vir verligting van armoede, almal meeding om hulpbronne. Die primêre navorsingsvraagstuk wat hierdie proefskrif aanspreek is hoe Amartya Sen en Martha Nussbaum se vermoënsbenadering kan bydra tot die ontwikkeling van ŉ teoretiese paradigma vir die regterlike hersiening van die Staat se toewysingsbesluite wat ŉ impak op sosio-ekonomiese regte het. Hierdie proefskrif identifiseer sleutel raakpunte wat bestaan tussen die vermoënsteorie en die eienskappe van Suid Afrika se projek van transformerende konstitusionalisme. Sodra hierdie kernbeginsels geïdentifiseer is, moet dit deurgaans in die beoordelingsproses nagekom word. In hierdie proefskrif word die noodsaak vir die ontwikkeling van ŉ vermoënsgebaseerde hersieningstandaard vir besluite oor die toewysing van Staatshulpbronne bepaal. Dienooreenkomstig word ŉ vermoënsgebaseerde standaard vir hersiening ontwerp. Die gewigstoekenningsoefening wat die gradering van vermoëns vereis, is deeglik ontwikkel om voorsiening te maak vir gevalle waar uiteenlopende regte meeding om voorrang en hulpbrontoewysing, of waar lang- en korttermyn vermoënsverwesenliking meeding om hulpbronne. Daar word nietemin gewaarsku dat ŉ vermoëns-gesentreerde gewigstoekenningsoefening slegs haalbaar is indien die howe bereid is om sosio-ekonomiese regte substantief te vertolk. Die vertolking van die inhoud van die ter sake reg met verwysing na die vermoëns wat dit verteenwoordig in ŉ bepaalde historiese, sosiale en feitelike konteks maak die eerste fase van die twee-stap analise uit. By die tweede fase van die regte-ontleding kan ŉ vermoëns-gesentreerde proporsionaliteitsontleding toegepas word op die bevraagtekende toewysingsbesluit. Laastens word die kontoere van ŉ vermoënsbenadering tot remedies ondersoek, waarvolgens die doelmatigheid van ŉ remedie gemeet word aan die potensiaal om vermoënsrealisering te bewerkstellig. Aldus kan die howe die Staat dwing tot verantwoordingspligtigheid, ŉ responsiewe ingesteldheid en openheid deur te vereis dat die Staat sy toewysingsbesluite verantwoord in die lig van die normatiewe konteks en doelwitte van sosio-ekonomiese regte. Indien redelike hulpbrontoewysingsbesluite vereis word, kan die howe help om te verseker dat die Staat sy hulpbronne aanwend vir sosio-ekonomiese vermoënsbewerkstelling op ŉ sistematiese vlak. Wanneer hulpbronne toegewys word om vermoënsbehoeftes te realiseer, word dit vir die sosio-ekonomies-benadeelde lede van ons samelewing moontlik om hul potensiaal te ontsluit en te kies om ŉ betekenisvolle lewe te leef. Sodoende word ŉ samelewing gekenmerk deur vryheid, menswaardigheid en gelykheid vir almal ŉ realistiese vooruitsig
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.
A comparative study of the effectiveness of bidder remedies in South Africa and Nigeria
(Stellenbosch : Stellenbosch University, 2018-03) Udeh, Kingsley Tochukwu; Quinot, Geo; Williams-Elegbe, Sope; Stellenbosch University. Faculty of Law. Department of Public Law.
ENGLISH ABSTRACT : The Guide to Enactment identified that a bidder remedies system helps to make procurement law to “an important degree self-policing and self-enforcing”. This is because it provides an avenue to litigate for bidders that have interest in monitoring procuring entities’ compliance with the procurement rules. In an attempt to protect their rights or to remedy the injury caused by breach of procurement rules, bidders act as “private attorney generals” to enforce compliance. Bidder remedies regime is an integral part of the public procurement systems of many countries in Africa. Nigeria and South Africa are examples of African countries that have such regimes. Bidder remedies have assumed an academic and practical importance due to the actual and perceived role that it plays in the proper functioning of a public procurement system. Although research interest in bidder remedies has been on the increase globally, only a negligible portion of the research focuses on Africa. The information gap that exists due to the availability of very little academic information on bidder remedies in Africa remains to be filled, by detailed research. This study fills this information gap by undertaking an in-depth comparative analysis of the bidder remedies systems of Nigeria and South Africa, and assessing their effectiveness using clearly identified yardsticks/elements. The key research question which this study addressed towards achieving the above, was: “Whether the bidder remedies regimes of South Africa and Nigeria are effective for the enforcement of public procurement rules?” This study was conducted by way of doctrinal legal analysis. The study adopted a comparative approach in analysing the bidder remedies systems of South Africa and Nigeria, with a view to assessing their respective effectiveness in enforcing public procurement law. Analytical references were made to the bidder remedies regimes provided under international regulatory regimes, such as the UNCITRAL Model Law on Public Procurement. The primary materials which this study relied on are relevant legislation and case laws from both jurisdictions. Similarities as well as striking differences exist between the South African and Nigerian bidder remedies regimes, which made the systems suitable for a comparative study. The study established that the bidder remedies systems of both countries are reasonably effective, although this is undermined by certain legal and structural factors. The key finding is that the design of bidder remedies systems affects their effectiveness. Thus, based on this and the lessons obtained from studying the two systems, this work towards the end presented a blueprint for any country wishing to design or redesign its remedies systems.
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.
Compensation for expropriation under the constitution
(Stellenbosch : University of Stellenbosch, 2009-03) Du Plessis, Wilhelmina Jacoba (Elmien); Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
Since the advent of constitutional democracy in 1994 South African courts have been faced with new interpretive imperatives.
Compliance with minimum wages : a South African legal perspective
(Stellenbosch : Stellenbosch University, 2021-03) Heppell, Erik; Smit, Nicola; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Globalisation has increased competition and resulted in various advancements of human life. However, it also has negative consequences, such as stagnating lower spectrum wages that occur despite increased labour productivity. Stagnating lower labour market wages that coincide with progressive top hierarchy wages result in excessive income inequality that presents detrimental consequences on various microeconomic and macroeconomic levels. Wages are the most common earnings of people and is therefore used within a regulatory framework to establish a minimum wage to address excessive income inequality. The utilisation of minimum wage is especially relevant in the South African context with its unequal labour market – one of the worst in the world – that undoubtedly played a role in introducing the SANMW. A threat to reaching the objectives of the SANMW and other minimum wage policies in other nations is the lack of compliance with minimum wage (that may be) exacerbated by non-compliance in developing countries. Establishing a legal minimum wage is important, but equally important is compliance/obedience to it. Without compliance, legal provisions may arguably only be of academic value and limited to paper. This thesis considers the compliance with minimum wage from a legislative viewpoint by deliberating three research questions. Firstly, how is minimum wage compliance pursued and achieved through the South African legal framework by considering three elements: being the coverage of minimum wage, the determination of minimum wage, and the legal enforcement of minimum wage and the sanctions/remedies for non-compliance. Secondly, what weaknesses in legal regulation can be identified, and based thereon, what recommendations can be made for more effective regulation and implementation of a minimum wage in South Africa? Thirdly, what lessons good and bad can be learned from the comparative foreign national legal minimum wage compliance frameworks of Australia and the United Kingdom? In answering the research questions, the concept of inequality is further examined, particularly in the South African context, before considering statutory/regulatory measures intended to address inequality in the labour market. The international legislative minimum wage compliance framework is established as a benchmark before considering the South African minimum wage compliance framework. Possible weaknesses are identified, followed by applicable recommendations. The legal minimum wage compliance frameworks of Australia and the United Kingdom are analysed. These nations arguably present respectable well-established minimum wage compliance frameworks that may act as a point of reference to other nations. Based on this comparative analysis, best and worst practices of the foreign jurisdictions are established before providing an effective legal minimum wage compliance framework.
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.
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.
The Constitutional Property Clause and Immaterial Property Interests
(Stellenbosch : University of Stellenbosch, 2011-03) Kellerman, Mikhalien; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The question that this dissertation addresses is which immaterial property interests may be recognised and protected under the constitutional property clause and if so, under which circumstances. The question originated in the First Certification case 1 where the court held that the constitutional property clause is wide enough to include property interests that require protection according to international norms. The traditional immaterial property interests or intellectual property rights (patents, copyright, designs and trademarks) are protected as property in private law on a sui generis basis. Since it is generally accepted that the property concept in constitutional law includes at least property rights protected in private law, it is relatively unproblematic to include intellectual property rights under the constitutional property clause. In Laugh It Off v SAB International,2 the Constitutional Court explicitly balanced the right to a trademark with the right to freedom of expression, which is accepted as authority that at least trademarks may be recognised and protected as constitutional property. The other intellectual property rights may most likely be recognised and protected by analogy. Foreign law as well as international law also indicates that intellectual property should be recognised and protected as constitutional property. However, there are other, unconventional immaterial property interests that are not protected as property in private law. Some are protected in private law, but not as property; others originate in public law; and yet others are not protected yet at all. In terms of the Constitution, South African courts may consider foreign law, but must consider international law. This dissertation determines when these interests may be protected as constitutional property by reference to foreign cases from German, American, Australian and Irish law; regional international law, namely European Union cases; and international law. The conclusion is that unconventional immaterial property interests may generally be protected if they are vested and acquired in terms of normal law, have patrimonial value and serve the general purpose of constitutional property protection. Property theories are also useful to determine when immaterial property interests deserve constitutional protection, although other theories may be more useful for some of the unconventional interests. The German scaling approach and the balancing of competing interests is a useful approach for South African courts to help determine the appropriate level of protection for specific immaterial property interests without excluding some at the outset.
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.
Constitutionalising copyright : a principled normative theory for transformative copyright adjudication
(Stellenbosch : Stellenbosch University, 2023-03) Shay, Richard Michael; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This dissertation investigates South African copyright law from a constitutional vantage point, specifically the role of adjudicators in effecting transformation of this realm of statutory law. Copyright law in South Africa long predates the advent of the Constitution of the Republic of South Africa, 1996, and the Copyright Act 98 of 1978 has seen sparse revision since its initial promulgation. While the constitutional mode of adjudication requires substantive reasoning and value-based interpretation to facilitate the transformation of all law under the single-system-of-law principle, this modality has yet to permeate the copyright context. The formalistic mode of reasoning employed in copyright adjudication arguably perpetuates an independent normative sphere in which property and trade looms large, accompanied by an array of interpretive canons and conventions that are a product of the erstwhile conservative legal culture that characterised South African legal interpretation prior to the constitutional era. Ronald Dworkin’s theory of Law as Integrity is discussed as a candidate reading strategy for courts engaged in transformative interpretation of South African law. Dworkin’s interpretive model of constructive interpretation is found compatible with the constitutional mandate to adopt a value-based strategy intent on “promot[ing] the spirit, purport and object of the Bill of Rights, as section 39(2) instructs. Furthermore, Dworkin’s dignity-based theory comports with the South African iterations of the fundamental triumvirate of “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms”, entrenched in section 1(a) and reinforced by section 39(1). Likewise, the Constitutional Court jurisprudence on the question of direct horizontal application of the rights in the Bill of Rights could be read to suggest that Dworkin’s normative approach may assist in defining the scope and ambit of duties between private parties, notably when the legal relationship is mediated by copyright law. Dworkin’s view of law as fidelity to the mandate of dignity through interpretation is ported to the copyright setting by relying on the taxonomical theory of intellectual property propounded by Robert Merges, comprising the trichotomy of justificatory foundations, midlevel principles, and practical doctrine. These concepts are reformulated to reflect a normatively responsive, principled account of adjudication in the South African situation.
The constitutionality of pornography
(Stellenbosch : Stellenbosch University, 2001-12) Van der Poll, Letetia; Du Plessis, L. M.; Gouws, A.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The advent of a constitutional democracy in South Africa after the first non-racial democratic elections in 1994 and the subsequent adoption of a final constitution in 1996 introduced a legal order based on "democratic values, social justice and fundamental rights". The inception of a constitutional democracy in South African encourages an assessment of the possible constitutional ramifications of pornography, specifically within a discourse on women's interests in equality, human dignity and physical integrity. Under the strong influence of United States First Amendment doctrine, pornography is defined (and protected in the "marketplace of ideas") as a particular mode of expression, thus allowing pornography to be viewed as part of the fabric of an open, free and democratic society. Within this doctrinal context, the recognition and entrenchment of freedom of expression have firmly placed pornography on both the South African constitutional and political agendas. The objective of this study is to address specific aspects of the debate on adult heterosexual pornography (that is, pornography produced for and targeted at the male heterosexual market) in order to establish its constitutionality. This dissertation is not, however, intended as a discourse on pornography as a possible threat to the moral fibre of society, but rather about pornography as an invasion ofwomen's particular constitutional interests in equality, human dignity as well as security in and control over their bodies. To this end, Chapter 2 serves to establish a suitable theoretical framework that is capable of facilitating a woman-centred analysis of adult heterosexual pornography within the ambit of the Bill of Rights in the South African Constitution. Consequently, the merit ofliberal feminism and radical feminist thought is critically assessed against the particular (constitutional and doctrinal) demands presented by a study of this nature. Chapter three - the first in a trilogy which seeks to evaluate the different conceptualisations of pornography in the United States, Canada and South Africa - critically reflects on the obscenity jurisprudence of the Supreme Court of the United States of America as well as radical feminist campaigns in Minneapolis and Indianapolis to re-conceptualise pornography and its harm. Chapter 4 entails a critical reflection on the capacity of Canadian constitutional jurisprudence to address adult heterosexual pornography either as a patriarchal structure which impacts on women's interests in equality, dignity and physical integrity or as a mode of expression which incites gender hatred. Chapter 5 traces the history of South African censorship law as prelude to a critical discussion of the current Films and Publications Act as well as the first decision of the South African Constitutional Court on the possible human rights implications of sexually explicit material. The chapter concludes with proposals for a suitable conception of the (constitutional) harm as well as a legal definition of adult heterosexual pornography for South African law. The constitutional implications of the proposed conceptions of pornography and harm are evaluated in Chapter 6 with specific reference to sections 9, 10 and 12 as well as subsection 16(2)( c) of the South African Constitution. Chapter 7 concludes the present study with some thoughts on the suitability of censorship as legal and political strategy.
The courts, national security and the free flow of information
(Stellenbosch : Stellenbosch University, 2020-03) Ramages, Justin Ray; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: National Security and the free flow of information are both vital to the preservation of South Africa’s open democracy. However, the two are often in tension, as the protection of National Security requires secrecy. This places it at odds with the rights to access, receive and impart information. In adjudicating this tension, the courts are hampered by the lack of a clear definition of National Security. The imprecision of this term could result in state abuse, or in leaving important security interests unprotected. Against this background, the thesis examines the constitutional rights to access, receive and impart information in view of the values that underlie them. It also explores the meaning of National Security with reference to legislation, case law, academic literature, and international and comparative law. On the basis of this study, it proposes a definition of National Security, which identifies the security interests that are to be preserved and the kinds of threats against which they must be safeguarded. Next, the thesis examines the tension between openness and secrecy within the judicial process in cases involving conflicts between the free flow of information and National Security. To that end, it considers the requirements of the constitutional principle of Open Justice with reference to case law. It examines legislative provisions which limit Open Justice in cases in which the disclosure of sensitive information in open court could compromise South Africa’s National Security, analyses the constitutionality of those measures, and proposes legislative amendments which would remedy the constitutional defects. Finally, the thesis examines the capacity of the judiciary to adjudicate, in a principled manner, conflicts between the free flow of information and National Security, in view of debates about courts’ institutional capacity and the perceived need for judicial deference in areas in which the executive, and not the judiciary, has special expertise. It also asks whether the procedures used to adjudicate conflicts between the free flow of information and National Security enable courts to decide these cases in a principled manner, and to avoid overstepping the bounds of the judicial function.
Courts, socio-economic rights and transformative politics
(Stellenbosch : University of Stellenbosch, 2009-03) Brand, Jacobus Frederick Daniel (Danie); Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases. This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics. The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it.
Crime as punishment: A legal perspective on vigilantism in South Africa
(Stellenbosch University, 2016-12) Nel, Mary; Kemp, Gerhard; Buur, Lars; Stellenbosch University. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : This study aims to remedy a gap in legal literature by addressing the phenomenon of vigilantism from a legal perspective, and seeking to conceptualise and understand the problem. To this end, it first arrives at a working definition of vigilantism for a legal context by critically analysing previous (non-legal) efforts to define vigilantism and identifying and discussing elements of a proposed crime of vigilantism. The focus then shifts to interrogating the relationship between (the erosion of) state legitimacy and vigilante self-help. After demonstrating the usefulness of the concept of legitimacy as an overarching framework for understanding the state-vigilante relationship, three dimensions of legitimacy (legal, normative and demonstrative) are explained and the assumed nexus between (deficient) state legitimacy and vigilantism is clarified. Next, factors precipitating state delegitimation in the criminal justice context are identified so as better to grasp the role of deficient state legitimacy in fostering vigilantism – and concomitantly, how the state might remedy such shortcomings. While it is argued that state delegitimation is by no means the only factor contributing to the emergence and prevalence of vigilantism, a common thread running through many vigilante narratives is that the failure of criminal justice agents to do their job properly opens a law-and-order gap that vigilantes are only too willing to fill with their own brand of “justice”. To appreciate the role played by vigilantes as informal criminal justice “providers”, vigilante counter-legitimation strategies and rituals are then explored. They are compared to those utilised by their formal counterparts, with the aim of better delineating the common ground (or lack thereof) between state-sanctioned criminal justice and vigilantism. Thereafter, various divergent state responses to vigilantism are outlined and critically evaluated, divided into chapters focusing on state relegitimation strategies premised on exclusion (e.g., criminal prosecution) and inclusion (e.g., restorative justice). The emphasis throughout is on how to address vigilantism in such a way as to balance a non-negotiable respect for human rights with the need to respond to pressing community order and security concerns. It is concluded that vigilantes may indeed be willing to abandon violent means of problem-solving sufficiently to legitimate – and work in partnership with – a formal criminal justice system committed to addressing issues of crime and disorder in a community-responsive, inclusive, respectful and restorative manner.

Browse

Browsing Doctoral Degrees (Public Law) by Title

Results Per Page

Sort Options