Browsing by Author "Boggenpoel, Z. T."
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- ItemThe 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.
- ItemApplying 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.
- ItemCompliance with section 25(2)(b) of the Constitution : when should compensation for expropriation be determined(Juta Law, 2012-11) Boggenpoel, Z. T.
- ItemThe continued relevance of the mandament van spolie : recent developments relating to dispossession and eviction(University of Pretoria, 2013) Boggenpoel, Z. T.; Pienaar, JuanitaTen spyte daarvan dat artikel 26(3) van die Grondwet die uitsetting van persone in die afwesigheid van ’n hofbevel verbied, het drie onlangse hofsake aangedui dat sulke uitsettings steeds plaasvind. Hoewel verskeie opsies vir die applikante (staatsorgane) beskikbaar was om persone uit geboue en skuilings te verwyder, (nood-, gesondheids- en rampmaatreëls en die Uitsettingswet 19 van 1998), is uitsetting in die gevalle onder bespreking effektiewelik bewerk deur spoliasie – van die gebou of skuiling as ’n geheel of van elemente wat integraal tot die skuiling was (ontneming van dakplate). Om besitsherstel te bewerkstellig (en uitsetting om te keer), is die mandament van spolie deur die respondente geopper. Hoewel die feite en omstandighede soortgelyk (maar nie identies nie) was, is die uitsprake taamlik uiteenlopend. In twee van die drie sake was die mandament onsuksesvol en is ’n grondwetlike besitsherstelremedie ontwikkel. In die derde geval was die mandament inderdaad suksesvol, hoewel die dakplate met plaasvervangende materiaal herstel moes word. Die bydrae ontleed die drie sake in die lig van (a) die basiese beginsels van die mandament en die redes vir die remedie in die algemeen; en (b) die noodsaaklikheid (al dan nie) om die remedie te ontwikkel. Dit wil voorkom of die mandament toenemend aangewend word om ander oogmerke, byvoorbeeld grondwetlike beskerming teen uitsetting, te bereik. Dit is problematies in die lig daarvan dat die mandament nooit beoog het om substantiewe regte of, soos in hierdie gevalle, veilige grondbeheer (“secure tenure”) daar te stel nie. Wat egter duidelik na vore kom, is dat (a) die Uitsettingswet nie persone beskerm wat in dieselfde posisie as die respondente is nie omdat die Wet te reaktief is; en (b) dat die mandament steeds relevansie het deurdat alle rolspelers gedwing om aan ʼn formele proses wat by ʼn openbare forum afspeel, deel te neem. Solank as wat die leemtes in die Uitsettingswet voortbestaan, is die mandament relevant, nie net as besitsherstelremedie nie, maar ook as meganisme om die belange van kwesbares – veral by onwettige uitsetting – uit te lig.
- ItemCreating a servitude to solve an encroachment dispute : a solution or creating another problem?(Academy of Science of South Africa, 2013) Boggenpoel, Z. T.The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The decision in this case has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Concerning these policy reasons, the note investigates the reasonableness standard as it was applied in the case. It is argued that it is important to differentiate between the applications of reasonableness in encroachment cases and alleged nuisance disputes.
- ItemDoes method really matter? Reconsidering the role of common-law remedies in the eviction paradigm(Juta Law Publishing, 2014-01) Boggenpoel, Z. T.The new constitutional dispensation brought with it (inevitably) large scale deviations in the way remedies in the context of evictions are applied in modern South African law. This article examines how the sources of law relate to one another in the search for suitable remedies for infringement of constitutional rights. Specifically in eviction law, it is clear that the relationship between the sources of law is uncertain for purposes of finding a remedy in the case of infringements of section 26(3) of the Constitution of the Republic of South Africa, 1996 ("the Constitution"). The evictee arguably has the possibility of two coinciding remedies, namely the mandament van spolie and a constitutional remedy under section 26(3). The article shows that both these remedies would in principle provide the same type of remedial content in the sense of ensuring that repossession takes place (thereby reversing the illegal eviction) so that the occupiers are (temporarily) placed in the position they were in prior to the illegal eviction (or dispossession) and the merits of the dispute can be decided in a subsequent eviction application. Nonetheless, it is argued that in order to ensure the types of decisions that give full effect to the rights as envisaged by the Constitution, courts should not be too quick to discard of the possibility that the common-law remedy could be invoked in the context of eviction. If the need arises to reconsider the common-law remedies in light of the Constitution (and to develop them in line with the Constitution) courts are not able to shy away from their obligation in terms of section 39(2).
- ItemIntangible constitutional property : a comparative analysis(Juta and Company, 2017-12) Swanepoel, Jan-Harm; Boggenpoel, Z. T.This article investigates how the question of recognising intangible interests as constitutional property is approached in the constitutional property law regimes of Moldova, Germany, the European Court of Human Rights (“ECHR”), the United States of America (“US”) and South Africa. It is also investigated whether Moldova and South Africa, being examples of relatively young constitutional democracies, follow an approach to the recognition of intangible interests as constitutional property that is perhaps similar to that of the established constitutional democracies of Germany and the US. This article concludes that each of the jurisdictions investigated do allow for the recognition of intangible interests as constitutional property, despite their diverging approaches to this question. The Constitutional Court of Moldova follows the approach of the ECHR regarding the recognition of intangible interests as constitutional property. The Constitutional Court of South Africa uses an approach that is doctrinally similar to that of German constitutional property law, though German law is not specifically followed.
- ItemQuestioning the use of the Mandament van Spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC)(North-West University, Faculty of Law, 2015) Boggenpoel, Z. T.This cursory note reflects on the outcome of the Constitutional Court judgment of Ngqukumba v Minister of Safety and Security. The decision presented the Court with the opportunity to consider what happens to existing common law remedies in light of legislation that has been enacted to regulate a specific area of the law. The Constitutional Court held that the Traffic Act did not place an absolute prohibition on the possession of tampered vehicles and therefore the Court granted the spoliation remedy. The Court’s conclusion that the mandament van spolie is in principle available in these instances, creates the impression that the common law remedy would be appropriate even though the Criminal Procedure Act (CPA) contains a remedy to claim the property back. This note argues that such a conclusion is problematic. If the CPA has a remedy to restore possession, that option should first be exhausted. In this regard, it is necessary to regulate the choice of remedy if the common law and the legislation provide a remedy to vindicate the violations of rights. Furthermore, in instances where legislation has been enacted to regulate a specific area of the law (or to give effect to a constitutional provision) the mandament van spolie should in principle not be available. Finally, this note concludes that in instances where the Traffic Act prohibits possession of certain vehicles, it should not be possible to use the mandament van spolie to by-pass the legislation.
- ItemRe-evaluating the court system in PIE eviction cases(Juta Law, 2018) Cloete, Clireesh; Boggenpoel, Z. T.The nexus between the court system (meaning in this note the civil-procedure rules and conventions according to which a matter is litigated) and the application of ss 4(1) and 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) is the focus of this note.
- ItemSubmission to Parliament on the review of section 25 of the Constitution of the Republic of South Africa, 1996(2019) Slade, B. V.; Pienaar, J. M.; Boggenpoel, Z. T.; Kotze, T.On the 27th of February 2018, the National Assembly adopted a motion to review section 25 and other relevant provisions of the Constitution of the Republic of South Africa, 1996, to permit the state to expropriate land in the public interest without paying compensation. The Constitutional Review Committee, mandated by the National Assembly, has invited written submissions on this matter. We hereby submit our submission on the motion to review section 25 and other relevant provisions. We are also prepared to make oral representation if the need arises.
- ItemThe discretion of courts in encroachment disputes(Juta, 2012) Boggenpoel, Z. T.The main focus of this note is Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010) SAFLII (accessed 13-06-2012), which was a case dealing with the erection of a fence that encroached on the applicant’s property. The note explores the current way that courts deal with encroachment disputes in light of the Phillips judgment. This judgment correctly confirms that courts assume the existence of a wide discretion to replace injunctive relief (or mandatory interdicts) with compensatory awards; it illustrates how the discretion will be exercised in order to reach a just and equitable outcome and lays open the possible constitutional implications that may be triggered if encroachments are not ordered to be removed. What is problematic in this case is that the court considered the possibility of ordering transfer of the land to the affected landowner. If a court exercises its discretion in favour of leaving the encroachment in place and additionally orders that the encroached-upon land be transferred to the encroacher, this court order sanctions an involuntary transfer of the affected property. The loss of property or property rights needs to comply with section 25 of the Constitution of the Republic of South Africa, 1996. The crucial concern in this case is whether the common law actually authorises such a court order that results in the deprivation. However, the possible constitutional problem that may have been created by an order for transfer of the affected land was avoided because the court ordered in terms of its discretion that the encroachment be removed. It should be noted, though, that the court’s remarks concerning the transfer order were made purely on the basis of the balance of prejudice and not on any constitutional principle. To my mind, the possibility of constitutional infringement may very well have arisen if the balance of prejudice favoured the encroacher and therefore the issue needs to be considered.