Department of Public Law

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Die aard van borgverrigtinge met spesifieke verwysing na die toepassing van die reels van die bewysreg op sodanige verrigtinge
(Stellenbosch : Stellenbosch University, 2004-04) Hendriks, Renette; Van der Merwe, S. E.; Stellenbosch University.Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: When evaluating a bail application, the court must take into consideration the interests of the accused against those of the community. The main goal of this assessment is to find a balance between said interests. While an application for bail is made at a stage where guilt has not been proven, it is of extreme importance that the court must not infringe on the fundamental rights of the accused which include the right to personal freedom and the presumption of innocence. In order to protect the rights of the bail applicant within the proper functioning of the legal system, it is important to determine the nature of bail proceedings. As shown in this thesis, bail proceedings are sui gelleris in nature, which means that a separate set of rules of the law of evidence is applicable to these proceedings. The object of this thesis is to identify the rules of law of evidence applicable to bail proceedings as well as to clarify the deviation from the normal rules of evidence which apply to the trial of the accused. In chapter one the purpose and nature of bail proceedings as well as the characteristics of accusatorial and inquisitorial systems, are discussed. Problem areas within the South African legal system with regards to bail applications are also highlighted in this chapter. In chapter two the application of the primary rules of the law of evidence with regards to bail proceedings are investigated as well as the admissibility of evidence pertaining to prior convictions of the applicant, opinion evidence and character evidence. In chapter three the admissibility of hearsay evidence at bail proceedings is discussed. The constitutionality of the privilege pertaining to the police docket is dealt with in chapter four. Chapter five deals with the infom1er's privilege. The requirements that have to be met in order to qualify for protection under the said privilege, are examined. Chapter six focuses on the privilege against self-incrimination and the manner In which it is applied in bail proceedings. The provisions of s 60(11B)(c) of the Criminal Procedure Act and the role of the presiding officer are also discussed in this chapter. Chapter seven focuses on the burden of proof in bail applications. Chapter eight contains a summary and recommendations.
The absence of a system of internal controls in South African Administrative Law, in light of Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000
(Stellenbosch : Stellenbosch University, 2020-12) Heydenrych, Ernst; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Section 33 of the Constitution envisions a lawful, reasonable and procedurally fair manner of obtaining administrative justice. Coupled with the project of Transformative Constitutionalism, which seeks to create a culture of justification, the hope was that South Africa’s public administration would become more open, accountable and efficient. The primary mechanism through which the above occurs, is judicial review. However, its time-consuming and costly nature means that a large portion of South African society cannot gain access to the court system. Furthermore, courts have often held that the public administration is better suited to deal with certain matters, as courts may lack the necessary expertise to address a particular administrative matter adequately. Thus, there is a need to find alternative methods for holding the public administration accountable. One such method, is by way of the exhaustion of internal remedies. Section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000 holds that an applicant for judicial review must first exhaust any and all available internal remedies before approaching a review court. Should the applicant fail to do so, the court is obliged to direct said applicant to first exhaust the available internal remedies (section 7(2)(b)), unless the court grants an exemption (section 7(2)(c)). However, members of the public have no general right to an internal remedy, nor is there a duty on the state to provide an aggrieved party with one. South African administrative law currently lacks a uniform system of internal controls (remedies), and whether or not an aggrieved party will have an internal remedy to exhaust, will depend on the context of each case. Accordingly, this thesis argues in favour of the creation and implementation of a uniform system of internal controls by the state, by relying on four main points: (a) section 33 of the Constitution; (b) the project of Transformative Constitutionalism; (c) the impact of poverty on the attainment of administrative justice; and (d) the duty to exhaust domestic remedies under international law. Should the above argument be accepted, then focus must shift to the content and scope of an effective internal remedy. By way of analysis of various statutory frameworks containing existing internal remedies, nine criteria are identified, which should inform the decision-making of the state when formulating the content and scope of an effective internal remedy.
Access to justice for non-citizens : a constitutional analysis
(Stellenbosch : Stellenbosch University, 2014-04) Matshakaile, Thabani Nkosiyapha; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx of migrants, asylum seekers and refugees since 1994, and this migratory movement has posed significant challenges to the post-apartheid legal order. This thesis is concerned with the State’s implementation of its constitutional obligations to protect and guarantee the constitutional rights of everyone within the borders of South Africa. It is important that these constitutional obligations do not remain mere aspirations but should translate into reality. Most non-citizens living in South Africa face numerous barriers to accessing justice and the processes that could enable them to realise their rights. The thesis examines the concept of “access to justice” and investigates a number of obstacles encountered by different categories of non-citizens – such as refugees, asylum seekers and documented and undocumented migrants – in trying to access justice and to realise their rights. Against this background, arrest, detention and deportation under the Immigration Act and Refugees Act are examined because these processes have often been abused by State officials to prevent non-citizens from accessing the rights and protections guaranteed in these Acts and the Constitution, and to frustrate the implementation of court orders vindicating the rights of non-citizens. The application of the Immigration and Refugees Acts is discussed through the lens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detention and deportation are done in a lawful and procedurally fair manner, as opposed to the arbitrariness that most non-citizens experience on a daily basis. Secondly, the thesis also examines access to justice for non-citizens in the context of xenophobia and bias based crimes. The State has in the past failed to respond in a coordinated and timely fashion in the face of violent manifestations of xenophobia. Against this background, the State’s obligation to protect non-citizens from violence from either public or private sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. The role, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that were brought before them emanating from xenophobic incidents. The thesis concludes with proposals on areas which require better implementation of existing laws; and areas in which legislative reform is needed.
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.
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.
The adjudication of budgetary decisions in socio-economic rights litigation
(Stellenbosch : Stellenbosch University, 2024-03) Rankin, Claire; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The entrenchment of socio-economic rights in the Constitution of the Republic of South Africa, 1996 commits the State to securing socio-economic redress in South Africa through the provision of various socio-economic goods and services. Ensuring the successful realisation of socio-economic rights requires, amongst other things, the provision of adequate budgetary support towards the programmes and policies aimed at giving effect to such rights. Judicial intervention in the State’s budgetary domain is traditionally understood to strain at the limits of the courts’ institutional legitimacy and competency. However, the manner in which socio-economic rights have been entrenched in the Constitution, the courts’ subsequent interpretation thereof, and the State’s existing budgetary patterns indicate that there may be a need for courts to assess the constitutionality of the budgetary support the State makes available to socio-economic policies and programmes. This study considers how courts could approach judicial intervention within such a context. Drawing from the work of legal theorists Rosalind Dixon and Katharine Young, this thesis suggests a suitable theoretical framework that could guide courts’ intervention in budgetary matters in a socio-economic rights context and makes recommendations regarding how such a framework could be utilised within the courts’ existing review and remedial paradigms.
Administrative justice and tribunals in South Africa : a commonwealth comparison
(Stellenbosch : Stellenbosch University, 2011-12) Armstrong, Gillian Claire; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: In the field of administrative law, the judiciary has traditionally exercised control over the administrative actions of the executive through judicial review. However, judicial review is neither the most effective nor the most efficient primary control mechanism for systemic administrative improvement. In a country faced with a task of =transformative constitutionalism‘, and hindered with scarce resources, there is good cause to limit judicial intervention as the first response to administrative disputes. The major theme of this thesis is to investigate the feasibility of administrative tribunal reform in South Africa, using two other commonwealth countries, Australia and England, as a basis for comparison. Australia and England have been chosen for comparison because they share similar administrative law traditions and they can provide working models of coherent tribunal structures. The Australian tribunal system is well-established and consists of tribunals which fall under the control of the executive, while tribunals in England have recently undergone a significant transformation, and are now part of the independent judiciary. The South African government currently spends, indeed wastes, a significant amount of money on administrative law litigation. Due to the limitations of judicial review, even after the high costs of litigation and the long duration of court proceedings, the results achieved may still be unsatisfactory. Furthermore, judicial review is unsuited to giving effect to systemic administrative change and the improvement of initial decision-making. Australia and England have begun to move away from the traditional court model for the resolution of administrative disputes. Both have indicated a preference for the important role of tribunals in the administration of disputes. Tribunals have been shown to offer the advantage of being speedier, cheaper, more efficient, more participatory and more accessible than traditional courts, which contributes to tribunals being a more available resource for lay people or people without sophisticated legal knowledge, and provides wider access to remedies than courts. The English and Australian models indicate a few important trends which need to be applied universally to ensure a sustained tribunal reform and a system which provides a higher level of administrative redress than the over-burdened and institutionally inept courts currently do. These include co-operation among government departments and tribunals; open and accountable systemic change; the need for supervision and evaluation of the whole of administrative law by an independent and competent body; and ultimately a focus on the needs of users of state services. At the same time, there are arguments against administrative tribunal reform. These include the costs of reform; the ways to establish tribunals; and the level of independence shown by the tribunals. These arguments are especially relevant in the South African context, where the government faces huge social problems and a scarcity of resources. However, after an analysis of the valuable characteristics of tribunals and the role that they serve in the day to day administration of justice, it is difficult to see how these objections to tribunals can outweigh their potential importance in the administrative justice system. The need for sustained systematic reform in South Africa is one that cannot be ignored. Tribunals offer a valuable alternative to judicial review for the resolution of administrative disputes. Furthermore, the tribunal systems of Australia and England demonstrate how the effective creation and continued use of comprehensive tribunal structures contributes firstly to cost reduction and secondly to ease the administrative burden on courts who are not suited to cure large-scale administrative error.
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.
The admissibility of a case before the International Criminal Court : an analysis of jurisdiction and complementarity
(Stellenbosch : Stellenbosch University, 2002-03) Denecke, Jan; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made.
The admissibility of unconstitutionally obtained evidence : issues concerning impeachment
(Stellenbosch : Stellenbosch University, 2005-05) Niesing, Gysbert; Van der Merwe, S. E.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The law regarding the admissibility of unconstitutionally obtained evidence for impeaching the accused's testimony is still undeveloped. This work discusses three of the options available to South African courts and the difficulties inherent in each. The first is to follow the approach of the Supreme Court of the United States. The American approach regarding the exclusion of evidence from the case in chief is strict. Courts are not bestowed with a discretion to admit unconstitutionally obtained evidence: Unless one of the accepted exceptions exist, a court must exclude unconstitutionally obtained evidence in order to deter unconstitutional behaviour by the authorities. Deterrence of unconstitutional police behaviour is however no longer considered controlling when cross-examining the accused. Unconstitutionally obtained evidence - both real and testimonial communications - is therefore admissible for impeachment purposes despite being excluded from the case in chief. The rationale is to prevent the accused giving perjurious testimony in the face of the prosecution's inability to impeach the accused's veracity in the usual manner. The application of the American approach in South Africa has however already been rejected in S v Makhathini.1 The second possibility is for South African courts to follow the position of the Supreme Court of Canada in R v Calder.2 The admissibility of impeachment evidence in Canada - as with evidence in chief - is based on the effect of its admission of the repute of the administration of justice. However, evidence excluded from the case in chief will only in very rare circumstances be admitted in cross-examination of the accused. Finally, the option suggested by this thesis, is to continue the trend started by s 35(5) of the South African Constitution, which has already been applied with great success in cases where the admissibility of unconstitutionally obtained evidence in the case in chief is in issue. Section 35(5), like the Canadian s 24(2) it bears some resemblance to, gives courts a discretion to exclude unconstitutionally obtained evidence on the basis of unfairness to the accused or the effect admission will have on the administration of justice. It is submitted in this thesis that, because of the interlocutory nature of a ruling on admissibility, this approach adapts easily to the admission of limited purpose evidence such as impeachment evidence: If the admission of the unconstitutionally obtained evidence, regardless of whether it was previously excluded from the case in chief, renders the trial unfair or would otherwise be detrimental to the administration of justice it must be excluded.
Advancing the constitutional goal of social justice through a teleological interpretation of key concepts in the environmental rights in section 24
(Stellenbosch : Stellenbosch University, 2014-12) Donald, Megan Elizabeth; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The protection and conservation of the environment is essential for the continued existence of humankind, particularly in light of the challenges of climate change and environmental degradation. Along with these environmental concerns, South Africa faces challenges of poverty and inequality which can exacerbate environmental degradation. It is also often the poor who bear the brunt of the impacts of pollution and environmental degradation. Any effective approach to environmental protection must be mindful of the need for poverty alleviation, while any socio-economic development must bear in mind the absolute necessity of the environment for the existence of humankind. Section 24(a) of the Constitution provides for the right to an environment not harmful to health or well-being, while environmental protection is included in section 24(b). A handful of cases have dealt with this right, but its meaning has not been developed or sufficiently defined. This thesis looks at the interpretation of the key concepts of “environment”, “health or well-being”, and “sustainable development” in section 24. This is done through a teleological interpretation of the right which is mindful of the role of the interdependence of rights, and the context of the Bill of Rights and the Constitution as a whole. In light of the transformative goals of the Constitution it is important that section 24 is construed with due regard to the influences and challenges of socio-economic concerns such as poverty, unemployment and inequality. This thesis argues that the environmental right in section 24 can and should be interpreted to advance the needs of the poor and improve their quality of life alongside the protection of the natural environment.
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.
The allocation of resources for the realisation of women's rights : an analysis of article 26(2) of the Maputo Protocol
(Stellenbosch : Stellenbosch University, 2020-12) Doubell, Lize-Mari; Rudman, Annika; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The Maputo Protocol is the leading women’s rights treaty in Africa. However, the treaty can only be effectively implemented if resources, aimed at its realisation, are generated and spent through government policies and budgets. Article 26(2) of the Maputo Protocol provides that state parties are obligated to adopt all necessary measures, which include budgetary and other resources, for the full and effective implementation of the rights therein recognised. After examining how state parties to the Maputo Protocol and the supervisory bodies currently mobilise resources to realise women’s rights, it was established that article 26(2) is severely underutilised and/or incorrectly applied by state parties. Some of the main reasons for this is a misallocation of resources and that state parties do not fully understand their obligations under the Maputo Protocol. Thus, women are left disempowered and unprotected. To address these concerns, this thesis establishes the nature of state obligationsunder article 26(2) through developing an interpretative framework for resource allocation to realise women’s rights. Anti-essentialist feminist legal theory and gender responsive budgeting are used as the theoretical framework guiding the research. As Africa is such a diverse continent, the analysis of anti-essentialist feminist legal theory ensures that the complex needs of women with multiple identities and lived realities are considered. The substantive realisation of human rights cannot be separated from resource allocation; thus, gender responsive budgeting provides a lens through which holistic budgeting for women’s rights can be understood. This thesis also considers how other international supervisory bodies, such as the CEDAW Committee and the CESCR, have interpreted resource allocation for the realisation of human rights. These supervisory bodies have, through their various mandates, provided a rigorous interpretation of how state parties should generate and spend resources to ensure human rights are kept at the forefront. This thesis finds that state parties to the Maputo Protocol, and the supervisory bodies, still have a long way to go to ensure that article 26(2) is fully interpreted and implemented. However, there are immediate steps which all parties can take, including commencing long-term strategies, which will result in more holistic gender responsive budgets and policies. The African Court, the African Commission, the Special Rapporteur, civil society and state parties all need to work together to ensure that women’s rights are fully protected.
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.
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.
An analysis of the Separation of Powers Doctrine in Housing Rights Remedies Jurisprudence
(Stellenbosch : Stellenbosch University, 2022-03) Weideman, Andrea Joy; Slade, Bradley V.; Kok, Anton; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The remedy issued by the Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC), has been criticized for being overly deferential. In spite of the courts’ wide remedial powers, it made an order lacking specificity about the measures required to remedy the housing rights infringement in that case, overly deferring its remedial role to the executive and legislative branches of government. The basis of the court’s overly deferential approach was the separation of powers doctrine. Therefore, the question that this study aims to address is how the separation of powers doctrine impacts on the courts’ provision of remedies in South African housing rights remedies jurisprudence. To answer this question, this study contains an analysis of the separation of powers doctrine in the abstract and as understood in the South African context, as well as an analysis of the remedies issued by the courts in housing rights cases, with a specific focus on the remedies issued by the Constitutional Court (hereafter “the Court”). This study attempts to illustrate that the foundation for the Court’s strict understanding of the separation of powers doctrine was laid during the debate about the inclusion of socio-economic rights in the 1996 Constitution. During this debate, separation of powers concerns, judicial capacity, and judicial legitimacy, were raised by those against the inclusion of socio-economic rights in the 1996 Constitution. In this study it was found that the same separation of powers concerns raised during this debate are ritually invoked by the Court in housing rights cases during the remedy stage of adjudication. It is against this backdrop that the Court has traditionally adopted a deferential approach in relation to the provision of remedies in housing rights cases. However, despite the implications of the Court’s traditionally deferential approach, the Court post-Grootboom has shifted away from this approach. While the Court’s postGrootboom approach was necessary considering the failed interaction between a deferential Court and an incompetent government, and its implication for the victims of housing rights violations, it potentially raises separation of powers concerns. Despite these separation of powers concerns, it is argued in this thesis that the Court’s post-Grootboom approach is justified on the basis of a more contemporary understanding of the separation of powers doctrine. While the Court’s post-Grootboom approach was a step in the right direction, the transformative — coupled with the supreme — nature of the 1996 Constitution requires something more, a reconceptualization of the separation of powers doctrine. The reconceptualised doctrine that I have in mind encapsulates a separation of powers that is understood and applied by the Court with the achievement of the transformative aims of the 1996 Constitution in mind.

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