501 research outputs found
THE METHODOLOGY USED TO INTERPRET CUSTOMARY LAND TENURE
No full textCustomary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure.Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case
The effect of the original acquisition of ownership of immovable property on existing limited real rights
No full textIt is an accepted principle in South African law that movable property acquired in an original way (by operation of law) is not burdened by any limited real rights, as previous limited real rights are extinguished on the vesting of ownership (mobilia non habent sequelam). It is assumed by some South African writers that the same principles are applicable to the original acquisition of immovable property and that all existing limited real rights fall away on original acquisition of ownership. In this article the nature of limited real rights to immovable property is examined, and the notion that ownership is the "mother" right on which all limited real rights are based is scrutinised critically. The nature and establishment of limited real rights are used to distinguish between the essence and effect of limited real rights in the case of immovable property. The recognition of limited real rights as constitutional property is used as a further argument that limited real rights cannot be extinguished automatically by the original acquisition of immovable property, as such common law or statutory measures will constitute an arbitrary deprivation of property in terms of section 25 of the Constitution. The statutory provisions regarding limited real rights in the case of prescription and expropriation are then analysed as an indication that it is not a general principle that limited real rights are extinguished automatically on the original acquisition of ownership of immovable property
Regulating communal land rights: The saga continues
No full textThe regulation off-label drugs is a complicated and controversial area of the law. Regulators must protect patients’ safety without interfering with physicians’ practice of medicine or manufacturers’ First Amendment rights. The recent Neurontin decisions, which apply the doctrine of false claims to prescription drug regulation, only adds additional complexity. This paper explores the federal government’s attempts to regulate the promotion of off-label drugs. It discussed the advantages and disadvantages of off-label marketing, the current regulatory environment, and the implications of the Neurontin lawsui
The inclusivity of communal land tenure: a redefinition of ownership in Canada and South Africa?
No full textThe nature of land tenure rights is defined in many different ways in different jurisdictions. One of the basic differences lies in the extent of exclusivity or inclusivity of land tenure, or what is called a "discourse of exclusion". Another lies in the distinction between the "idea of property", premised by individualism, and the "institution of property", preoccupied with compromise, relationality and the tension between individual and community.
The purpose of this article is to compare the inclusivity or exclusivity of property in South Africa, where the law is predominantly civilian in nature, with Canada, a predominantly common law jurisdiction. In both jurisdictions communal land tenure has been incorporated in their property systems of predominantly civil law and common law respectively. Canada was chosen for this comparison because of the remarkable similarity that, in both jurisdictions, it required three different decisions by three different courts before the matter was finally settled, namely the Delgamuukw decisions in Canada and the Richtersveld cases in South Africa
The real agreement as causa for the transfer of immovable property
No full textThe difference between the causal and abstract theories of transfer of ownership has been discussed extensively in property law textbooks and journals, mostly with the emphasis on movable property. Initial judgments on this topic dealt with the requirements for the transfer of movable property only. It is but in the last few years that judgments have been reported regarding the application of the principles of the abstract theory to the transfer of ownership of immovable property. The purpose of this article is not to repeat the above-mentioned historical and comparative research, but to indicate how the abstract theory of transfer of ownership and the concomitant principle in respect of a valid real agreement are applied to the transfer of immovable property in terms of the negative deeds registration system in South Africa. Not only the theoretical difference between the abstract and causal systems of transfer of ownership has to be taken into consideration in the case of immovable property, but also practical requirements of the registration system
Die grondwetlikheid van die voorgestelde onteieningsraamwerkd vir Suid-Afrika : aantekeninge
No full textAspects of Land Administration in the Context of Good Governance
No full textRecent international developments have emphasised the importance of good governance in land administration. Good governance practices are inter alia predictable, open and enlightened policy-making; accountable and transparent processes; a professional ethos that combats corruption, bias, nepotism and personal gain; and strict financial control and management of funding. This paper explores aspects of land administration where public funding and interests necessitate the application of good governance practices. The South African land reform programme is divided in three sub-programmes, namely land restitution, land redistribution and tenure reform. Land reform is a vast subject, based on policy, legislation and case law. Therefore it is impossible to deal with good governance principles over the wide spectrum of land reform. Special attention is however given to the land restitution programme in terms of the Restitution of Land Rights Act 22 of 1994 and tenure reform in the rural areas by means of the Communal Land Rights Act 11 of 2004. The purpose is not to formulate a blueprint for good governance or to indicate which good governance principles will solve all or most of the land tenure problems. It is rather an effort to indicate that policies and procedures to improve good governance in some aspects of land reform are urgently needed and should be explored further. The three land tenure programmes have been introduced with some degree of success. Legislation promulgated in terms of these programmes, especially the Restitution of Land Rights Act and the Communal Land Rights Act, is extensive and far-reaching. However, many legislative measures are either impractical due to financial constraints and lack of capacity of the Department of Land Affairs, or are not based on sufficient participation by local communities. Land administration should furthermore be planned and executed in the context of global good governance practices. This includes equal protection; clear land policy principles; land tenure principles according to the needs of individuals and population groups; flexible land registration principles to accommodate both individual and communal land tenure; and appropriate institutional arrangements. It is clear that established good governance principles may solve many of the problems encountered in land administration in South Africa. It is a topic that needs to be explored further
Land information as a tool for effective land administration and development
No full textIn South Africa two diverse property regimes exist alongside one another, namely the system of individualised, common-law landownership, predominantly based on civil-law principles, and the system of communal land tenure, predominantly based on the shared use of land by communities in terms of indigenous-law principles. Added to this is a registration system originally based on the Dutch land registration procedures, but modified in the nineteenth century through the introduction of English cadastral survey procedures linked to the registration system. Only individualised common-law landownership, co-ownership and limited real rights are registrable. The registration system does not provide for the registration of communal land rights, which has the effect that official information in respect of communal land tenure is currently unreliable. The failure to provide tenure security for indigenous communities can be attributed to several factors, including a large incidence of dysfunctional communities; a defective, and often entirely absent, administrative system to support communities; the wrong kind of formalisation introduced by legislation, namely Westernised corporate models too far removed from accepted customs; the absence of the publicity principle; and the lack of a suitable information and recording system. The main aim of a formalised structure should not be the individualisation of communal land tenure in the form of freehold title, but the security offered by information (recording and publication) of communal land rights exercised within accepted community structures. The existing deeds registration already provides for different forms of registration, namely individualised land rights in the case of surveyed land and urban fragmented property holding in the case of sectional titles and timesharing. This article explores the possibility of the development of a third form to record communal land rights in the name of communities, in accordance with the distinctive nature of community structures and communal land tenure. The aim of such a register should be the recording of use rights associated with communal land tenure, which will provide the necessary information (publication) for the development of a comprehensive land administration system that is lacking at this stage
Raamwerkwetgewing ter verwesenliking van die reg op toegang tot voldoende voedsel
No full textVarious South African government reports list food security as a development
priority. Despite this prioritisation and despite the fact that South Africa is currently
food self-sufficient, ongoing food shortages remain a daily reality for approximately
35 percent of the South African population. The government's commitment to food
security to date of writing this contribution manifests in related policies, strategies,
programmes and sectoral legislation with the focus on food production, distribution,
safety and assistance. A paradigm shift in the international food security debate was
encouraged during 2009, namely to base food security initiatives on the right to
sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the
Right to Food of the United Nations, accordingly confirmed that a human rightsbased
approach to food security is necessary in the South African legal and policy
framework in order to address the huge disparities in terms of food security
(especially concerning geography, gender and race). A human rights-based
approach to food security will add dimensions of dignity, transparency,
accountability, participation and empowerment to food security initiatives. The
achievement of food security is further seen as the realisation of existing rights,
notably the right of access to sufficient food. The right of access to sufficient food, as
entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to
food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996
qualifies section 27(1)(b) by requiring the state to take reasonable legislative and
other measures, within its available resources, to achieve the progressive realisation
of each of the section 27(1) rights. The South African government's commitment to
food security, as already mentioned, currently manifests in related policies,
strategies and programmes, which initiatives will qualify as other measures as
referred to in section 27(2) mentioned above. This contribution, however, aims to
elucidate the constitutional duty to take reasonable legislative measures as required
by section 27(2) within the wider context of food security. This contribution is more
specifically confined to the ways in which a human rights-based approach to food
security can be accommodated in a proposed framework law as a national legislative
measures. Several underlying and foundational themes are addressed in this
contribution, amongst others: (a) the relationship between food security and the right
of access to sufficient food; (b) food security as a developmental goal; and (c) the
increasing trend to apply a human rights-based approach to development initiatives
in general, but also to food security
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