Department of Private Law

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The abuse of the trust (or: "Going behind the trust form") : The South African experience with some comparative perspectives
(Mohr Siebeck, 2012-10) De Waal, Marius J.
INTRODUCTION: Sometime during 1994 a trust was created with a certain Mr. Badenhorst, a successful farmer near a small South African town, as one of its trustees. At the time he was happily married. The marriage between Mr. Badenhorst and his wife was out of community of property, meaning that each one of the parties to the marriage had an own separate estate (or “patrimony”).
The adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and Louisiana
(Juta Law Publishing, 2008-02) Van der Merwe, C. G.
INTRODUCTION: Since the maxim superficies solo cedit disallows separate ownership of land and parts of a building, special legislation was necessary in South Africa, Sri Lanka and Louisiana to breach this principle of accession and legitimize the institution of apartment ownership in these mixed jurisdictions. At the time when urgent housing shortages, especially near centers of employment, compelled these jurisdictions to promulgate statutes to regulate apartment ownership, the most attractive workable precedents available were the common law statutes of New South Wales, British Columbia and certain United States’ statutes. The great success which especially New South Wales enjoyed in providing housing to thousands of Australians led to the transplantation of the New South Wales statute to South Africa and Sri Lanka. The impetus for the first generation Louisiana Horizontal Property Act of 1962 was the availability of Federal Housing Authority insured mortgages for condominiums in states where condominium regimes were authorized by local law. This Act is copied almost verbatim from the Arkansas Property Act, which in turn borrowed from the Puerto Rican statute altering the civilian terminology in that statute to suit common law requirements. Because of numerous shortcomings, the Horizontal Property Act was replaced by the Condominium Act of 1974 and finally the Condominium Act of 1979. Although these second and third generation Louisiana statutes conform to the terminology of the Civil Code, the latest Act borrowed heavily from the Uniform Condominium Act approved by the Commissioners on Uniform State Laws in 1977. The Uniform Condominium Act and the New South Wales strata legislation are the two most sophisticated common law statutes in the world.
Alternatiewe benaderings ten opsigte van feitelike kousaliteit in die deliktereg
(LitNet, 2013-12) Wessels, Bernard
In Lee v Minister of Correctional Services is die eiser tydens sy aanhouding in die Pollsmoorgevangenis met tuberkulose (TB) geïnfekteer. Hy beweer dat die verweerder se werknemers op nalatige wyse versuim het om die bestaande gesondheidsmaatreëls toe te pas, welke versuim op onregmatige wyse sy infeksie veroorsaak het, en hy stel gevolglik ’n skadevergoedingseis teen die verweerder in. Weens die besondere aard van ’n TB-infeksie is dit onmoontlik om die bron daarvan te identifiseer en bygevolg op oorwig van waarskynlikheid te bewys dat die nalatige versuim van die tronkowerhede die die feitelike oorsaak van die eiser se skade is. Tog bevind die verhoorhof en die konstitusionele hof dat daar wel ’n kousale verband tussen die eiser se skade en die verweerder se nalatige versuim was. Die konstitusionele hof bevind voorts dat al die elemente van ’n delik deur die eiser bewys is en stel die verweerder deliktueel aanspreeklik. Die feite van hierdie saak illustreer die kompleksiteit wat die kousaliteitsvraag soms kan binnedring asook die uitdagings wat die gemeenregtelike conditio sine qua non- of but for-toets vir feitelike kousaliteit in uitsonderlike feitegevalle moet trotseer.
An analysis of the rationale behind the inclusion of the genetic link requirement in surrogate motherhood agreements in the Children's Act 17 of 2005
(Stellenbosch : Stellenbosch University, 2018-03) Wallendorf, Bianke; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis seeks to analyse the rationale behind the inclusion of the genetic link requirement, contained in section 294 of the Children’s Act 38 of 2005 (“Children’s Act”) in surrogate motherhood agreements. Infertility has become a global phenomenon, making assisted reproductive technology more relevant than ever. Surrogacy, as one form of assisted reproductive technology, enables people who aspire to become parents to have a child (or children), by making use of a surrogate mother to do so. This is done by way of a surrogate motherhood agreement, which is regulated extensively by the Children’s Act. The Children’s Act sets out many requirements for a valid surrogate motherhood agreement. This dissertation entails an analysis of the genetic link requirement, which requires a genetic link between the child born pursuant to the surrogate motherhood agreement and at least one commissioning parent. In essence, this thesis considers the reasoning behind the inclusion of the requirement, which was confirmed as being constitutional in AB (CC) 2016 ZACC 43, in the Children’s Act. It considers the process of regulating surrogacy in South Africa, focussing particularly on the origin of the genetic link requirement, and the decision of the legislature to include the requirement in the Children’s Act. In order to provide context, the legal position in South Africa regarding this requirement is briefly compared with that of India and Greece; the former also requiring a genetic link, the latter legal system not containing such requirement. Since the genetic link requirement is a contentious requirement in South Africa, the conflicting jurisprudence dealing with the requirement is considered in detail. By extracting the rationales for the genetic link requirement contained in the preparatory documents used by the legislature in the enactment of section 294 of the Children’s Act, as well as those contained in the jurisprudence, it is suggested that the two primary rationales for the inclusion of the genetic link requirement in the Children’s Act is the genetic origin rationale and the adoption rationale. This thesis examines both rationales extensively, taking into account that children’s best interests are of paramount importance, and that South Africa has a unique context of poverty and racial inequality following the apartheid regime – the predecessor of a democratic South Africa.
The application of the Copyright Act, 1978, to works made prior to 1979
(Stellenbosch : Stellenbosch University, 1988-12) Dean, O. H.; Jordaan, H. A.; Schwietering, K.; Stellenbosch University. Faculty of Law. Dept. of Private Law
Article 1 Section 8 Clause 8 of the Constitution of the United States of America empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". This simple clause sums up in a few words the philosophy and underlying principles of modern copyright law. Copyright law, like other branches of intellectual property law (i.e. the laws of patents, trade marks and designs), seeks to create a system whereby the creator of original works or intellectual property is afforded a qualified monopoly in the use or exploitation of his work in order, first, to compensate and reward him for the effort, creativity and talent expended and utilized in the creation of his work, and secondly, to act as an incentive for him to use his talents and efforts to create more and better works or items of intellectual property. The qualified monopoly is limited in duration and after the expiry of the term the work falls into the public domain and can be freely used and reproduced by others. A balance is struck between the interests of the individual and the public interest. The rationale behind this philosophy is the establishment of a profit incentive for creators of intellectual property. The effectiveness of the profit motive is dependent upon the degree to which the creator of the intellectual property is able to maintain and enforce his qualified monopoly. If the law is not effective in enabling the creator of intellectual property to maintain and enforce his monopoly then the efficiency of the operation of the profit motive will be impaired. Consequently, the soundness and effectiveness of the law of copyright is a . significant factor in the promotion of the creation of intellectual property and ultimately• in enriching our culture and promoting our knowledge and well-being. Viewed from a different perspective, the purpose of copyright is to prevent one man from appropriating to himself what has been produced by the skill and labour of others1 . In broad terms, copyright may be described as the exclusive right in relation to a work embodying intellectual property (i.e. the product of the intellect) to do or to authorize others to do certain acts in relation to that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or profit. Copyright is an immaterial property right. The subject of the right is a work of the intellect or spirit and thus an intangible. Copyright in a work is akin to ownership in a tangible article. The following analysis of the essential nature of copyright by Slomowitz AJ in Video Parktown North (Pty) Limited v Paramount Pictures Corporation is instructive: "It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some or all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of his mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and is called 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. In this sense, copyright has sometimes been called 'intellectual property', as it indeed is. " Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items of property, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest in different persons. Transfer of the ownership of one of the i terns of property does not necessarily affect transfer of the ownership of the other item of property.
The availability of the mandament van spolie when upon the subdivision of a farm into two portions and the alienation of these portions to different owners, an existing exit road is replaced : Van Rhyn NNO v Fleurbaix Farm (Pty) Ltd 2013 5 SA 521 (WCC)
(Juta Law, 2014-01) Van der Merwe, C. G.
This case concerns the availability of the mandament van spolie in a particular scenario. The context is the subdivision of a plot of land. After the subdivision the owner of one of the subdivided portions closed off a gravel road that provided access to a public road to the owners of both subdivided portions. In an application for a spoliatory order the court a quo directed the appellants to restore the respondent's right of access by way of the gravel road across their property to the road connecting the two properties to the public road. This case came on appeal to the full bench of the Western Cape division of the high court.
The battle of the Bakgatla-Ba-Kgafela community : access to and control of communal land
(North-West University, Faculty of Law, 2017) Pienaar, Juanita Magrietha
Like numerous other traditional communities in South Africa, the Bakgatla-Ba-Kgafela community lost portions of their ancestral land in the pre-constitutional era. Under an all-encompassing land reform programme, which also provides for the restitution of land in particular circumstances, a land claim was lodged. Having been successful with the land claim as all of the requirements set out in the Restitution of Land Rights Act 22 of 1994 were met, the first battle of the community in reclaiming their land had been won. The initial victory was short-lived as a second battle ensued, dealing with the governance of and form of control over the newly restored land. While the community wanted a communal property association, provided for in the Communal Property Associations Act 28 of 1996, the traditional leader preferred a trust. In this regard the various options of forms and constructs of collective ownership came into play. The second battle resulted in the Constitutional Court's deciding in favour of a communal property association in the light of the overall scheme of the Communal Property Associations Act, its objectives, the particular role of the Director-General of the Department of Rural Development and Land Reform, and all that had transpired in this particular case. This contribution deals with both of these battles, first setting out the struggle to reclaim the lost land, and then discussing the conflict over ownership and governance issues brought to finality in Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority 2015 6 SA 32 (CC). In this regard the judgment is analysed and thereafter reflected on with respect to recent developments linked specifically to communal property association legislation and then to other developments impacting on communal land and traditional communities in general. With regard to the former, recent draft amendments to the Communal Property Associations Act are highlighted, whereas policy developments and draft legislative measures are discussed with regard to the latter. While it is possible that some of the recent suggested amendments embodied in the Amendment Bill would have streamlined the process had these amendments been in operation when the Bakgatla-Ba-Kgafela community fought the second battle, various problems remain. In this context markedly different - conflicting - approaches emerged from the Constitutional Court judgment and official policy measures. Whereas the Court confirmed more democratic forms of ownership and governance in general, but specifically with respect to traditional communities, official policy documents coupled with draft legislative measures relating to traditional courts entrench traditional leadership constructs. In this regard more democratic forms of governance and ownership are seemingly reserved for areas outside traditional communal areas, most notably outside the former homelands. While the judgment handed down in the Constitutional Court may have brought closure to the Bakgatla-Ba-Kgafela community regarding the formation of a communal property association, the struggle of other traditional communities opting for communal property associations may just be beginning.
Die betekenis van 'n ontneming weens 'n rasdiskriminerende wet of praktyk vir doeleindes van die Wet op Herstel van Grondregte 22 van 1994 - 'n oorsig van ontwikkelings in regspraak
(LitNet Academic, 2012-12) Pienaar, Juanita M.
OPSOMMING: Persone of gemeenskappe kwalifiseer vir restitusie indien hul ontneem is van ’n reg in grond na 19 Junie 1913 as gevolg van ’n rasdiskriminerende wet of praktyk. Die Wet op Herstel van Grondregte 22 van 1994 verskaf nie werklik duidelikheid oor wat onder “as gevolg van ’n rasdiskriminerende wet of praktyk” verstaan word nie. Gevolglik is dit die taak van die howe om die relevante frase te interpreteer en op bepaalde feite toe te pas. Die frase is ’n belangrike deel van die regsvereistes alvorens ’n grondeis suksesvol kan wees. Aan die een kant beteken dit dat nie sommer enige ontneming vir restitusie kwalifiseer nie. Aan die ander kant is dit algemeen bekend dat die hele Suid-Afrikaanse grondbeheerstelsel voor 1991 in beginsel op ’n rassebasis gefunksioneer het. Wat presies word dus onder hierdie frase verstaan? Die doel van hierdie bydrae is om aan die hand van regspraak bepaalde benaderings (of toetse) te identifiseer en te bepaal of ’n spesifieke benadering ’n bepaalde resultaat sou bewerkstellig. Die uitgangspunt is dat die Restitusiewet, omdat dit uit hoofde van die Grondwet (artikel 25(7)) uitgevaardig is, ook ’n doelmatige interpretasiebenadering vereis. In hierdie proses is egter oor die jare drie verskillende benaderings (of toetse) in drie toonaangewende hofbeslissings ontwikkel. ’n Uiteensetting van die verskillende benaderings en ’n vergelyking daarvan dui aan dat die resultate inderdaad verskil, afhangende van die benadering wat gevolg word. Nadat die huidige (jongste) benadering van die Popela-uitspraak (konstitusionele hof) bespreek is, word die mees onlangse beslissing, Jacobs, waarin die optrede van staatsamptenare ter sprake was, in die lig van dié benadering ontleed. Die slotsom is dat hoewel duidelikheid ten aansien van die algemene doelmatige benadering tot interpretasie verkry is, die oorsaaklikheidskwessie moontlik nog steeds problematies kan wees.
Building encroachments and compulsory transfer of ownership
(Stellenbosch : University of Stellenbosch, 2010-12) Temmers, Zsa-Zsa; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT: South African courts seem to be adopting a new approach to the problem of building encroachments. For pragmatic and policy reasons courts are now inclined to exercise its discretion in favour of leaving building encroachments in place, against compensation, despite the common law right to demand removal. It has been widely accepted that courts indeed have the discretion to award damages instead of removal of the building encroachment. However, the circumstances involved and the consequences of these orders are uncertain and hence these orders result in confusion. It is unclear how this discretion is exercised. Furthermore, it is uncertain whether this discretion includes the power to order transfer of the encroached-upon land to the encroacher. There are doctrinal and constitutional implications that may be triggered by these court orders that leave building encroachments in place. The doctrinal issues centre on what happens when an encroachment is not removed and nothing is said about the rights of the respective parties after the order is made. Possible solutions are investigated to provide a doctrinally sound outcome in encroachment disputes. It is clear that the encroacher is allowed to continue occupying the portion of property on which the encroachment is erected. It seems as though a use right is indirectly created when the encroachment remains in place. The constitutional difficulty lies in the fact that the court orders may result in infringements that conflict with section 25 of the Constitution. The focus is specifically to determine whether these orders result in the compulsory loss of property or property rights. With reference to Germany, the Netherlands and Australia, a comparative perspective is provided in order to support the doctrinal and policy arguments. The comparative law provides a source of guidelines for what may work effectively and informs the ultimate suggestion of this project, namely the need for legislation to regulate building encroachments in South Africa. The legislation envisaged would have to prescribe with at least some sort of certainty how and in which circumstances the discretion should be exercised. It should also provide clarity with regard to the right that is created when the encroachment is not removed and how the compensation that is awarded in exchange for removal, should be determined. The unnecessary confusion and uncertainty that result from court orders made in the context of building encroachments may be cleared up by legislation.
Can personal servitudes be worded in such a way that they are perpetual in nature and thus freely transferable and transmissable
(Juta Law, 2013-01) Van der Merwe, C. G.
The issues in Resnekov v Cohen (2012 1 SA 314 (WCC)) were whether a restrictive condition inserted into the title deeds of the servient property constituted a praedial or personal servitude, and if found to be personal, whether it could be made transferable to successors in title by the correct wording of the restrictive condition in title deeds of the servient property.
Certainty about surrogacy
(Juta Law Publishing, 2010-09) Mills, Lize
Summary: With the recent coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010, the previous legal position relating to surrogacy has been completely altered. Prior to the commencement of these provisions of the Act, commissioning persons in a surrogacy relationship had to adopt the artificially conceived child in terms of the Child Care Act 74 of 1983. In June 2009, at a time when the Child Care Act was still in force, the North Gauteng High Court found, inter alia, that the adoption procedure may be ignored and that the commissioning parents will automatically be regarded as the child’s parents. The Court provided no reasons for its decision. Since the most important question in a legal, moral, religious and philosophical issue such as surrogacy is to determine the parental responsibilities and rights of the parties involved, it was of the utmost importance that the previous unsatisfactory and confusing position be clarified. This note aims to explain the background to the Court’s order and to evaluate the decision in view of the legal position applicable at the time. It also discusses the possible implications of this order as well as the certainty which the amendments to the law, in terms of Chapter 19 of the Children’s Act, will hopefully bring.
The child's rights to, in and through basic education : an analysis of South Africa's international obligations
(Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
A child’s right to basic education during the Covid-19 pandemic : a comparative analysis and evaluation of the impact of Covid-19 on the South African education system, and the effectiveness of the nation’s legal response in protecting a child’s right to education
(Stellenbosch : Stellenbosch University, 2023-03) Padachey, Denisha; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH SUMMARY : It has long been accepted that a child’s right to education is of vital importance as it not only enables them to participate and function in society but enables the realisation of their human rights and fundamental freedoms. Since the onset of the Covid-19 pandemic, the education sector faced numerous disruptions and learners were prevented from physically accessing their schools. The Covid-19 pandemic and the ways in which jurisdictions were forced to respond had and continues to have severe impacts in terms of the existing and new forms of inequalities in relation to children and their right to education. The focus of this thesis is therefore a child’s right to basic education in light of the Covid-19 pandemic, with specific reference to the South African situation. This research thus aims to identify whether the legal responses in terms of the legislation, policies, regulations and mechanisms which have been introduced and implemented in South Africa during the Covid-19 pandemic, protected a child’s right to education or hindered the realisation a child’s right to education. It is argued that a one-size fits all solution cannot apply in situations of emergency such as the Covid-19 pandemic. This thesis therefore unpacks each respective nations obligations in respect of the right to education, as well as the status of education and educational attainment in each jurisdiction prior to the outbreak of the Covid-19 pandemic. Moreover, in order to determine how a child’s right to education has been impacted and whether the legal responses introduced were effective and protected a child’s right to education, this thesis shall make use of a comparative analysis approach wherein the situation in South Africa shall be compared to that of the United States of America, the United Kingdom, Italy and Nigeria. This will be done by analysing the legal responses of each jurisdiction utilising the 4 ‘A’ approach, and taking into consideration their national, regional and international obligations in respect of a child’s right to education. This research further explores whether the legal responses and mechanisms implemented in other jurisdictions are flexible and whether they can be successfully implemented in South Africa. Finally this thesis sets out recommendations in order to respond to the challenges which arose and continue to arise in education due to the Covid-19 pandemic and the subsequent legal responses.
Circuit courts in the Cape Colony during the nineteenth century : hazards and achievements
(UNISA Press, 2013) Erasmus, H. J.
The circuit courts established by the Earl of Caledon in 1811 introduced the fundamental features characteristic of proceedings at common law to the Cape and thus constitute an important precursor to the Charters of Justice of 1827 and 1832. They also paved the way for the circuit courts established in 1827 under the First Charter of Justice, the predecessors of the circuit courts which to this day form part of the legal landscape in South Africa. During the nineteenth century, judges of the Cape Supreme Court regularly visited outlying towns and districts to hear both civil and criminal cases. The circuits lasted for weeks and long distances were travelled under primitive and hazardous conditions. The judges and counsel often had to endure great physical hardship. They all stuck to their task with commendable tenacity and perseverance. In the circumstances, the contribution of the Cape judges to the development of South African law and to the survival of the Roman-Dutch law was a remarkable achievement. The circuit courts brought to the outlying districts the administration of justice at the highest level. The sittings of the courts were open to the public, and the community participated in the proceedings by way of jury service. All this contributed to the integration of the administration of justice into the social fabric and "judicial conscience" of the people in the outlying communities. The circuit courts played a major role in entrenching the English procedural and judicial style in the minds of the people, and in bringing home the message that the courts were open to all the people of the colony, and that the protection of the courts extended to all of them.
Communal land and tenure security: analysis of the South African Communal Land Rights Act 11 of 2004
(Stellenbosch : University of Stellenbosch, 2009-12) Johnson, Ebrezia; Mostert, H.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: In this thesis, the Communal Land Rights Act 11 0f 2004 is analysed in order to determine whether it can give effect to the constitutional mandate in terms of which it was promulgated, namely section 25(5), (6) and (9) of the Constitution. Land policy pertaining to land tenure reform is discussed to see how and to what extent it finds application in the Act. The time-consuming process pertaining to the registration of the community rules is investigated, and the implications where a community fails to adhere to this peremptory provision in the Act are explained. The thesis also analyses and discusses the functions of statutorily created institutions, like the land administration committee and the land rights boards, in the efficient management of land in rural areas. The aforementioned land administration committee is particularly problematic, since the Act provides that in cases where a recognised tribal authority exist, that institution “may” be considered as the land administration committee, subject to prescribed composition requirements as contained in the Act. The Traditional Leadership and Governance Framework Act will also be discussed since it intersects with the Communal Land Rights Act in this regard. The pending constitutional challenge which relates to this potentially problematic issue, will be discussed. The constitutional challenge of the Act by four communities’ is explored in order to indicate just how potentially problematic the institution of traditional leadership could be. vi This study also discusses and analyses the compromise contained in the Act, regarding the registration of the land title of a community and the registration of “new order rights” in the name of individuals. In this context the impact of this process on the efficacy on the current Deeds registration system is investigated. The Ministerial determination and its constitutional implications is yet another issue, examined in this study. All of these issues will have a negative impact on the implementation of the Communal Land Rights Act and especially on achieving tenure security.
A comparative analysis of the content of parental responsibilities and rights during the "sex alteration decisionmaking process" of intersexed infants
(Stellenbosch : Stellenbosch University, 2021-03) Thompson, Sabrina; Mills, L.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
Thesis (LLM)--Stellenbosch University, 2021.
A comparative evaluation of the judicial discretion to refuse specific performance
(Stellenbosch : Stellenbosch University, 2014-12) Van der Merwe, Su-Anne; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts.
A comparative perspective on the "joint-action rule" in the context of business trusts
(Juta Law Publishing, 2014-01) De Waal, M. J.; Du Plessis, I.
The "joint-action rule" in South African trust law entails that all trustees must act jointly in order to bind the trust. Non-compliance with the rule will most often lead to the invalidity of a contract between the trustees and an outsider. Hence, in the context of business trusts, the application of the rule may be particularly problematic. We submit that the main reason why the business trust remains a useful institution is that the trust brings with it, through the importation of certain standard features, important advantages that need not be specifically bargained for. However, normal rules of trust law, such as the joint-action rule, must also be complied with. Hence, mechanisms to ameliorate some of the problematical effects of this rule can be put in place, such as provisions stipulating that decisions can be taken by a majority of the trustees, or that the trustees can delegate certain defined duties or powers. It is clear, however, that difficulties remain and that South African courts are still facing challenges in developing this area of trust law. But South Africa is not the only trust jurisdiction where the joint-action rule applies and where mechanisms have been developed to address the difficulties experienced with this rule. Comparing the position in South Africa to that in England, Scotland and Canada (including Québec), a remarkable degree of similarity between South Africa, on the one hand, and the other jurisdictions, on the other, as far as the basic application of the joint-action rule is concerned, can be noted. However, there are a number of differences as well. In many of the other jurisdictions legislation generally plays a much bigger role than in South Africa and it may provide a rich source of ideas for the development of this area of South African trust law.
Comparative perspectives on the role of the trustees and the managing agent as dramatis personae in the governance of sectional title schemes in South Africa
(Stellenbosch : Stellenbosch University, 2016-03) Durham, Carryn Melissa; Van der Merwe, Cornelius Gerhardus; Stellenbosch University. Faculty of Law. Department of Private Law
ENGLISH ABSTRACT : Ownership of affordable housing is made possible through the concept of sectional title, which maximizes the number of available homes per square meter and makes optimum use of available land. The utilization of sectional title schemes to provide housing to a broader base of South Africans would only be successful if schemes are provided with an efficient management structure. Besides the general meeting, the two most important dramatis personae in the management of sectional title schemes are the trustees and the managing agent. This thesis will focus on the role played by these administrators in the governance of sectional title schemes. The discussion will commence with an exposition of the legal status of both these role players followed by an examination of the reasons for their election and appointment to perform the day-to-day management functions of the body corporate. In order for these role players to carry out their functions effectively they need to be suitably qualified and should have the personal qualities required to execute the task. Furthermore, the role players should be properly elected or appointed to their positions by established administrative procedures. The powers, functions and duties of the trustees and the managing agent must be clearly defined with the minimum overlap between their tasks to ensure certainty, and to avoid a situation where a certain function is either not performed at all, or where a single function is performed by two or more of the role players. Due to the fact that these role players should be held accountable for abuses or negligence in the performance of their functions, the fiduciary position and instances of indemnification of trustees for negligent execution of their duties will then be dealt with. This will be followed by an examination of the remuneration payable to trustees and managing agents and their claims for expenses incurred in the performance of their functions. Finally, the terms of appointment of the managing agent will be scrutinized and the circumstances in which his appointment and the office of trustees may be terminated will be placed on the table. The thesis will regularly identify particular deficiencies in the Sectional Titles Act 95 of 1986 and the prescribed management rules relating to trustees and managing agents. Where appropriate and practicable, reference will be made to the manner in which New South Wales, Singapore, Malaysia, China and Germany deal with particular shortcomings. The aim is to search for potentially more appropriate solutions to iron out such problems, and thereby to regulate the governance of sectional title schemes in South Africa more effectively. Where a sectional title scheme faces financial ruin or experiences flagrant managerial mismanagement, the Sectional Titles Act provides for the appointment of an administrator. This measure of last resort should be avoided by ensuring that properly elected, qualified and accountable managerial role players administer the scheme. Therefore, I propose that the Sectional Titles Act 95 of 1986 (or rather the future Sectional Titles Schemes Management Act 8 of 2011) should be amended to make provision for the mandatory appointment of a professional manager as the sole executive organ of the body corporate assisted by an elected board of trustees consisting of sectional owners, and who act merely in a advisory capacity. The status of the managing agent would be elevated to that of an executive organ of the body corporate. This will mean greater responsibilities for the managing agent, but would result in more efficient management of South African sectional title schemes.
A comparative study of black rural women's tenure security in South Africa and Namibia
(Stellenbosch : Stellenbosch University, 2012-12) Kamkuemah, Anna Ndaadhomagano; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The South African land question presents complex legal and social challenges. The legal aspects of land are inextricably linked to other socio-economic aspects, such as access to housing, healthcare, water and social security. The Constitution provides for land reform in the property clause - section 25. This clause, while seeking to redress the colonial land dispossessions, by means of a tripartite land reform programme, also protects the property rights of all. The different legs of the land reform programme are redistribution, which is aimed at enabling citizens to access land on an equitable basis; restitution, which sets out to restore property rights or grant equitable redress to those dispossessed of land as a result of past racially discriminatory laws or practices and finally tenure reform. Tenure reform is premised on transforming the landholding system of those with legally insecure tenure as a result of past racially discriminatory laws or practices or granting comparable redress. The primary focus of this thesis is on tenure security for black rural women in South Africa, while using the Namibian experience with regard of the same group as a comparison. Historically, before colonialism, landholding was governed by the customary law of the various tribes in South Africa. This landholding system underwent extensive change through the colonial era that ultimately led to a fragmented and disproportionate distribution of land based on race, with insecure land rights particularly in rural areas, where women are the majority. With the dawn of the Constitutional era, South Africa embarked upon a social justice project, based on a supreme Constitution, embodying human dignity, equality, non-racialism, accountability and the rule of law. Land reform forms part of the social project and is governed by the Constitution and influenced by both the civil and customary law. With the South African tenure context, policy documents, legislation and case law will be analysed. In this process the role of the stakeholders and other related factors, for example customary practices are also considered. The analysis indicates that case law has played a significant part in addressing women’s plight with regard to equality, tenure reform and abolishing suppressive legislative provisions and practices. It is furthermore clear that the different categories of women are affected differently by the overarching tenure and other related measures. For a legal comparative study, Namibia was chosen for the following reasons: (a) both South Africa and Namibia have a shared colonial and apartheid background; (b) both countries have a Constitutional foundation incorporating human rights and equality; and (c) both countries have embarked on land reform programmes. However, contrary to the South African position, both the Namibian Constitution and its National Land Policy are more gender-specific. Tenure reform is an on-going process in Namibia in terms of which specific categories of women have benefitted lately. To that end the gender inclined approach may be of specific value for the South African situation, in general, but in particular concerning black rural women. Consequently, particular recommendations, linked to the specific categories of women, are finally provided for the South African position, in light of the Namibian experience.

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