Research Articles (Public Law)

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Addressing the issue in Harvey v Umhlatuze Municipality in legislation
(Juta Law Publishing, 2014-01) Slade, B. V.
In Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ("Harvey") the High Court had to decide whether it was competent to order the re-transfer of expropriated property to the previous owner when the purpose for which the property was expropriated could not be realised. The court refused to order the re-transfer of the property due to the absence of legislation that authorises the Court to re-transfer expropriated property upon the non-realisation of the purpose of the expropriation. In March 2013, a draft Expropriation Bill was released for public comment. This note shows that the Expropriation Bill, if passed into law, does not address the issue that was present in Harvey, but only allows for the re-transfer of previously expropriated property in very limited circumstances. Since the Expropriation Bill does not effectively address the issue that was present in Harvey, recommendations are made that should resolve the issue that was present in that decision. The main objective of the amending provisions should be to indicate the nature of the right of re-transfer, the persons entitled to claim re-transfer, the time-frame within which the expropriated owner can reclaim the property upon non-implementation of the purpose, setting up a framework for calculating the amount that has to be repaid, as well as the circumstances under which the state would not be required to re-transfer the property to the previous owner. Including detailed legislation that effectively resolves the issue in Harvey v Umhlatuze Municipality, the state would be prevented from changing the purpose for which expropriated property is used at its own discretion. It would also prevent the state from using a valid public purpose as a smokescreen to use the property for a different purpose after the property has been expropriated.
An administrative law perspective on “bad building” evictions in the Johannesburg inner city
(ESR Review (Economic and Social Rights in South Africa), 2007-05) Quinot, G.
The recent judgment of the Supreme Court of Appeal in Rand Properties provides an opportunity to assess the use of administrative law arguments in advancing the realisation of socio-economic rights. The judgment itself is disappointing in this respect by failing to grapple effectively with the potentially constructive interaction between section 33 of the Constitution and the various socio-economic rights provisions.
Age or maturity? African children’s right to participate in medical decision-making processes
(Pretoria University Law Press, 2020) Fokala, Elvis; Rudman, Annika
This article advocates an approach to children’s participation in medical decision-making processes guided by the rationality of the best interests’ principle, a child’s evolving capacity and a child’s age. Using a human rights-based approach, rooted in the UN Convention on the Rights of the Child and the African Children’s Charter, it seeks to elucidate the contested three-way partnership between the child, its parent(s) and the assigned physician(s), which plays out in relation to most medical procedures involving children. In analysing legislation and case law, the article further aims to clarify the complex relationship between age and maturity in child participation; to facilitate a child’s involvement in the three-way partnership; and to suggest the statutory recognition of an age indicator in domestic African law in relation to medical procedures.
Aggression as "organised hypocricy?" - How the war on terrorism and hybrid threats challenge the Nuremberg legacy
(University of Windsor, 2012) Kemp, Gerhard; Bachmann, Sascha-Dominik
Modern threats to international peace and security from so called “Hybrid Threats”, multimodal threats such as cyber war, low intensity asymmetric conflict scenarios, global terrorism etc. which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of “war and peace”, with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the “legacy” of Nuremberg has now become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the “legacy of Nuremberg” and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
Albie Sachs and the politics of interpretation
(UNISA Press, 2010-01) Botha, Henk
The politics of interpretation continues to haunt judges and legal theorists. Ever since the legal realists launched their attack on the formalist belief that general legal rules can generate determinate answers to concrete legal questions, constitutional thought has been obsessed with the spectre of unelected judges thwarting the will of legislative majorities in the name of their own, subjective interpretations of constitutional provisions. For generations of constitutional scholars, attempting to show how judges can avoid substituting their own views on policy issues for those of legislatures, and/or how constitutional adjudication can be placed on a more secure footing has been a consuming passion.
Alternative measures to reduce trial cases, private autonomy and "public interest" : some observations with specific reference to plea bargaining and economic crimes
(Juta Law Publishing, 2014-01) Kemp, Gerhard
This note considers alternative measures to reduce trial cases as a strategy to enhance the effectiveness of the criminal justice system. The emphasis falls on economic crime. It is noted that alternative measures, particularly formal and informal plea bargaining, can be beneficial and are also manifestations of individual autonomy. It is, however, warned that insofar as institutionalised alternative measures become part of a cost-benefit, economic analysis (which seems to be a real risk in the context of economic crime) and insofar as criminal trials for major or complex crimes serve public, didactic roles, alternative measures should not be opted for without careful consideration of the public interest in the broadest sense.
Ambit of mineral rights : paving the way for new order disputes
(Juta Law, 2007-01) Badenhorst, P. J.; Mostert, H.
The ambit of a real right, such as a mineral right, is determined by ascertaining the content thereof by identifying and listing its entitlements as well as identifying the limitations placed upon the exercise of such right. Once the ambit of a right (and/or competing rights) is determined, the relationship or possible conflict between parties holding different rights to the same legal object may be ascertained. This contribution is a discussion of the recent decision in Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2006 1 SA 350 (T) in which the content of mineral rights in the context of the doctrine of lateral support was considered. A brief exposition of the relevant facts follows, whereafter the arguments entertained by the court is discussed. The court's decision on the ambit of mineral rights and the applicability of the property clause to the present case will then receive attention, before the general impact of the decision is discussed in more detail.
The ambit of the discretion of courts in the case of encroachments : Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property
(Juta Law, 2015-01) Boggenpoel, Z. T.
The purpose of this note is to analyse a recent judgment of the South Gauteng High Court in Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property (unreported GSJ judgment, case no 41882/12, 10 December 2013). Although this is a fairly short judgment it raises important questions regarding the law pertaining to encroachments. As such, it warrants a discussion of the ambit of the courts’ discretion where encroachments are concerned. The facts of the case can be summarised as follows. The applicant and respondent owned neighbouring commercial properties. The applicant owned plot 989, which measures 5989 square metres, while the respondent owned plot 990, which measures roughly 1821 hectares. The applicant had initially owned both properties and sold off plot 990 to the respondent on 31 July 2006. At the time that the transfer took place, both parties were unaware that the existing fence between the two plots was not situated on the cadastral boundary between the properties (para 4). The inaccurate placing of the fence resulted in a triangular piece of land (measuring some 2271 square metres), an incomplete building (approximately 703 square metres in size) and a guard house structure being incorrectly incorporated as part of the applicant’s land, although they actually belonged to the respondent (para 2). When the applicant became aware of the encroachment, it approached the respondent to acquire the encroachment area. The applicant offered to pay an amount of R4 410 721.00 plus a solatium of R100 000 for the encroachment to remain in place in perpetuity. However, the negotiations failed and the parties approached the Gauteng South High Court for a decision on the matter.
The application of socio-economic rights to private law
(Juta Law, 2008-01) Liebenberg, Sandra
The constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality,1 land reform2 and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties. In South Africa (as is the case in other societies based on a market economy) powerful private actors such as landlords, banks, medical aid schemes, insurance companies and utility companies delivering public services such as water exercise significant control over people’s access to socio-economic rights. Common-law rules and institutions structure access to socio-economic resources in diverse areas of contract law, property law, delict, family law and succession.
Applying the mandament van spolie in the case of incorporeals : two recent examples from case law
(Juta Law, 2015-01) Boggenpoel, Z. T.
The mandament van spolie is a remedy available in South African law to protect possession of property. The remedy is aimed at ensuring restoration of possession ante omnia in instances of unlawful dispossession. It is not specifically aimed at protecting rights with regard to property; therefore it is generally accepted that courts should disregard the merits of the dispute when deciding whether the remedy should be granted. Considerations other than the remedy's two requirements are therefore irrelevant in the decision of whether the mandament van spolie is applicable. There are two requirements that need to be complied with in order for one to be successful with the mandament van spolie. Firstly, the spoliatus - the person who was dispossessed - must prove peaceful and undisturbed possession of property. In the case of incorporeals - where physical possession is not possible - the law recognises quasi-possession to fulfil the first requirement of the remedy. Van der Merwe explains that the spoliatus does not have to prove that he/she actually had a right to possess in terms of the maxim ante omnia restituendus est, but simply that the right was actually possessed and that unlawful dispossession took place.
Artikel 3(1) en (2) van die Mineral and Petroleum Resources Development Act 28 van 2002 : n herbeskouing
(Juta Law, 2007-01) Badenhorst, P. J.; Mostert, Hanri
Die grondwet verplig die staat om ekologies volhoubare ontwikkeling van natuurlike hulpbronne sowel as ekonomiese en sosiale ontwikkeling te bewerkstellig. 1 Die grondwet bemagtig die staat om hierdie verpligting te vervul deur te bepaal dat die fundamentele reg tot eiendom nie so vertolk behoort te word dat dit die hervormingsoogmerke van die staat met betrekking tot grond, water en verwante hulpbronne lamlê nie. Sover dit Suid-Afrika se mineraal- en petroleumbronne aangaan, is gepoog om hierdie verpligting tot ontwikkeling en hervorming gestand te doen deur die invoer van ’n nuwe statutêre raamwerk. Op 1 Mei 2004 is die Mineral and Petroleum Resources Development Act 28 van 2002 (hierna die wet) van stapel gestuur. Dit is voorafgegaan deur ’n wetsontwerpfase wat tot so ’n mate gekenmerk is deur glipse, dat ’n goeie dosis skeptisisme oor die werking van die wetgewing te verstane is, selfs al word die algemene belang daarvan in ’n nuwe grondwetlike bestel nie betwyfel nie.
At the intersection between expropriation law and administrative law : two critical views on the Constitutional Court's Arun judgment
(Faculty of Law, North-West University, 2016-08) Marais, E. J.; Maree, P. J. H.; Public Law
Abstract of article; "In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law. In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle. From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. The rationale behind these time-periods is integral to securing administrative justice, since time-periods are not merely formalistic technicalities. Thirdly, the authors argue that a green-light approach to internal remedies could have resulted in the broadening of the interpretative context and recognition of the legitimate role of the public administration in the state. Finally, deference as understood by Dyzenhaus also exemplifies why administrative law should not be ignored in cases which concern the exercise of public power. According to Dyzenhaus, deference requires courts to actively participate in the justification of administrative decisions by asking whether the administration's "reasoning did in fact and also could in principle justify the conclusion reached".
Die basiese-struktuur-leerstuk : 'n basis vir die toepassing in Suid-Afrika, of 'n skending van die skeiding van magte?
(LitNet, 2015-08) Van Schalkwyk, Cecile
Die basiese-struktuur-leerstuk is in 1973 deur die hoogste hof van Indië ontwikkel in ’n poging om die misbruik van grondwetwysigings deur die dominante regerende party te voorkom. Die leerstuk bepaal dat, ten spyte daarvan dat die formele en prosedurele vereistes vir wysiging nagekom is, ’n wysiging ongrondwetlik sal wees indien dit die basiese struktuur van die Grondwet skend, negeer of vervang. Sedertdien het hierdie leerstuk ’n deurslaggewende rol gespeel in die beskerming van Indië se grondwetlike demokrasie en dit vind vandag ook aanwending in verskeie ander jurisdiksies. Of die leerstuk op dieselfde wyse in die Suid-Afrikaanse grondwetlike reg toepassing kan vind, is by geleentheid deur die konstitusionele hof oorweeg, maar geen finale beslissing bestaan in hierdie verband nie. Terwyl skrywers soos Samuel Issacharoff en Sujit Choudhry die oorname van die leerstuk in Suid-Afrika bepleit, is ander, soos Theunis Roux, nie so optimisties oor die moontlikheid van so ’n ontwikkeling nie. Sentraal tot die debat is die vraag of die leerstuk sal inbreuk maak op die skeiding van magte tussen die regsprekende gesag en die wetgewende gesag, aangesien dit aan die hof as ’n niedemokraties verkose instelling die mag gee om wysigings deur die demokraties verkose wetgewer te verwerp. Hierdie artikel oorweeg die potensiële oorname van die leerstuk in Suid-Afrika met verwysing na die wisselwerking tussen die leerstuk en die skeiding van magte. Die rol van die leerstuk in Indië word ondersoek om te bepaal hoe die hoogste hof aldaar te werk gegaan het om die leerstuk met die skeiding van magte te versoen. Daar word dan regsvergelykend gewys op die tekstuele en kontekstuele verskille wat die oorname van die leerstuk in Suid-Afrika se grondwetlike reg bemoeilik, en meer spesifiek, die wyse waarop die Suid-Afrikaanse model van die skeiding van magte so ’n oorname weerstaan. Voorts sal die akademiese debat tussen Issacharoff en Roux oor die leerstuk krities ondersoek word.
Beyond sexual binaries? the German Federal Constitutional Court and the rights of intersex people
(North-West University, Faculty of Law, 2018) Botha, Henk
In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.
Beyond UNCITRAL : the challenges of procurement reform implementation in Africa
(Juta Law Publishing, 2014-01) Williams-Elegbe, Sope
Most of the countries in sub-Saharan Africa have undergone some form of public procurement reform in the last two decades. This reform usually takes the form of the passage of new procurement regulation, which is usually based on the UNCITRAL model law as well as the creation of new institutions or the strengthening of existing ones. In addition, procurement reform may be accompanied by capacity building measures directed at the professionalisation of the procurement cadre and the enforcement of a remedial system where there are breaches of procurement regulation. Despite the extensive efforts directed at procurement reform, in some countries, the reformed system does not always yield the desired results in terms of more efficient, transparent and effective procurement. This research examines some of the factors that may undermine public procurement reform in Africa, using South Africa and Nigeria as case studies and concludes that procurement reform in the 21st century may need to be considered from a more holistic perspective if it is to deliver an adequate, modern and well-functioning procurement system, improve public sector governance and accountability and aid socio-economic development through prudent public spending.
Calibrating children’s rights to participate in a family setting 30 years after the adoption of the convention on the rights of the child and the African Children’s Charter
(University of Fort Hare, 2021) Fokala, Elvis
Efforts to ensure compliance with Article 12 of the United Nations Convention on the Rights of the Child (CRC) and Articles 4(2) and 7 of the African Charter on the Rights and Welfare of the Child (Children’s Charter), permitting every child the right to participate in all matters affecting a child have reached boiling point in Africa. The reasons for this are plenty and range from the growing interests and development of children’s rights to the increasing visibility of relaxed parental influence. For children, the relaxation of parental influence and the need to accentuate their right to participate in a family setting is essential because decisions that are taken within their families often have an immediate and sometimes lasting impact on their lives. Thirty years after the adoption of the CRC and the Children’s Charter, this article aims to explore the existing cultured literature and models on child participation to propose a new way forward based on a child’s evolving capacity. The article further aims to shine the light on the recognition of a child’s right to participate in a family setting and suggest a model to enable better understanding and implementation of a child’s right to participate in a family setting in Africa. This article is inspired by the CRC Committee’s recognition of the family as one of the leading settings for promoting child participation.
A capabilities approach to remedies for systemic resource-related socioeconomic rights violations in South Africa
(Pretoria University Law Press, 2019) Van der Berg, Shanelle
The judiciary plays a key role in holding the government accountable for its socio-economic policies. By adhering to certain tenets that underlie both South Africa's transformative Constitution and Sen and Nussbaum's capabilities approach, courts can promote the foundational values of dignity, equality and freedom, broaden participation and ensure accountability. Since government's priorities are most clearly reflected in its budgetary allocations, courts should apply a capabilities-based standard of proportionality review where it is claimed that a socioeconomic right has been violated due to disproportionate resource allocation. In this article, the focus shifts to the implications of adopting a capabilities approach at the remedial phase of adjudication. Given that the South African Constitution demands 'effective' relief where a constitutional right has been infringed, it is argued that efficacy can be assessed by a remedy's ability to realise the capabilities that form the content of the infringed socio-economic right. Furthermore, where socioeconomic rights are infringed upon on a systemic level through unreasonable resource allocation, key principles that inform a capabilities approach to adjudication can be incorporated into the design of structural interdicts to ensure lasting capability realisation and institutional reform. Where all these principles are observed, effective relief can ensue. Finally, the incorporation of these principles into remedial design can help mitigate separation of powers-based concerns that the judiciary lacks the institutional competence and legitimacy required to adjudicate complex, polycentric matters of government resource allocation.
A case study in advocating for expanded clinical legal education : the University of Stellenbosch module
(Cape Town : Juta and Company (Pty) Ltd, 2017-03) Van der Merwe, Stephan
Practical Legal Training 471 (“PLT”) is the only Clinical Legal Education (“CLE”) module currently offered by the Faculty of Law at the University of Stellenbosch (“Faculty”). It has an important function in that it offers to final year law students the opportunity to acquire and develop skills in a clinical setting. Despite overwhelming international support for CLE as a teaching methodology, it has a limited role in the current LLB curriculum where it is offered as an elective to a relatively small number of final year law students. In this respect, Stellenbosch reflects the position of many other University law faculties. This article presents an argument favouring a dedicated and pro-active effort to increase CLE’s footprint within the Faculty by restructuring the current elective module into one that is mandatory for all law students. This is done by considering the pedagogical, institutional and access to justice arguments in support of effective CLE modules. This is then followed by an overview of the current PLT module, emphasising the role and expectations of the Law Clinic (“LC”), impacted community, students, faculty and profession. The article then identifies some of the challenges which deter universities, like Stellenbosch, from offering CLE as a compulsory module in their LLB curriculum. With due regard to the complexity of the issues at stake, some suggestions are offered that could serve as a starting point for law faculties in considering how to deal with the obstacles in the way of offering a mandatory CLE module. Ultimately, any efforts to expand CLE remain contingent on the relevant faculty’s support and its ability to realise the full potential of CLE by considering a mandatory module as a necessary intervention in its LLB programme offering.
The Commission as a party before the court – reflections on the complementarity arrangement
(North-West University, 2016-05-30) Rudman, Annika
The African Commission on Human and Peoples' Rights has worked as the continent's watchdog, under the ACHPR, for almost 30 years. Much has changed since the time of its inception. More institutions, set to ensure the implementation of the ACHPR, have been added. As the African Court on Human and Peoples' Rights became operational, a two-tiered human rights system was created.This article explores the inter-relationship between the ACHPR, the Protocol Establishing the African Court on Human and Peoples’ Rights and the Procedural Rules of these two institutions within the specific context of the African Commission's mandate to refer communications to the African Court. The aim is to offer a purposeful interpretation of the Procedural Rules governing referrals, guided by the understanding of the principle of complementarity in the preparatory works. The author argues that an appropriate interpretation of complementarity, within the context of referrals, becomes vital in alleviating one of the long-term plagues of the African, protective, human rights system, namely the lack of resources and human capital. It is suggested that the African Commission and the African Court can only be effective if they take proper cognisance of the principle of complementarity, in referring and receiving communications.
Compensation for what? An analysis of the outcome in Arun Property Development (PTY) LTD v Cape Town City
(Academy of Science of South Africa, 2016) Slade, Bradley V.
In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court awarded compensation for land that vested in the City of Cape Town in terms of a regulatory framework. The regulatory framework, sections 25 and 28 of the Cape Land Use Planning Ordinance of 1985 (LUPO), provides that land needed for public streets and places and indicated as such on a subdivision plan should vest in the local authority concerned, but without compensation if that land is based on the normal need of providing the particular development with such public streets and places. The appellant argued that since land in excess of the normal need also vested in the City, it had a right to be compensated for the excess land that vested in the City. The Court, overturning two Supreme Court of Appeal decisions, awarded compensation. The Court hinted that the compensation was for the expropriation of the appellant's land that was excess to the normal need. In the absence of a formal expropriation procedure, this case note investigates whether the compensation could have been awarded for statutory expropriation or constructive expropriation. Therefore, the question that is posed is whether the alleged expropriation for which the Court awarded compensation can be classified as either statutory expropriation or constructive expropriation. It is pointed out that the Court accepted that section 28 of the LUPO constitutes a development contribution for the land based on the normal need. In terms of the notion of development contributions, a developer has to donate land to the local authority concerned if that land is required to provide the particular development with public streets and places. A development contribution, as part of the administrative process of approving developments, is regulatory in nature and its validity is judged in terms of the requirements for a valid deprivation of property. It is argued that since the Court interpreted section 28 of the LUPO to provide for development contributions, the alleged expropriation cannot be classified as statutory expropriation. Statutory expropriation occurs when legislation expropriates property directly through mere promulgation. In this case, the excess land vested in the City only after an administrative action was taken to approve a subdivision plan. It is also argued that statutory expropriation cannot be recognised in South African law, due to the constitutional requirements for a valid expropriation in section 25(2) of the Constitution.

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