1,720,963 research outputs found
Hornby D, Kingwill R, Royston L and Cousins B (eds) Untitled: Securing Land Tenure in Urban and Rural South Africa (2017 University of KwaZulu-Natal Press)
Get PDFThis contribution provides a review of the book edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins, Untitled: Securing Land Tenure in Urban and Rural
South Africa. It deals with the topic of land tenure in urban and rural South Africa and challenges the requirement of title deeds to secure land tenure
Book Review: Aboriginal Customary Law: A Source of Common Law Title to Land
No full textBook Title: Aboriginal Customary Law: A Source of Common Law Title to LandBook Author: U Secher(2014 Hart Publishing Oxford and Portland Oregon) ISBN 978-1-84946-553-
The Legal Framework Governing Traditional Leaders' Role in Land Use Planning in South Africa
No full textThis article investigates the legal framework governing the role of traditional leaders in land use planning, through a historical gaze at the nature and authority of traditional leadership in South Africa. It is through this brief historical discussion that the influence of colonial and apartheid concepts of traditional leadership, as concretised in legislation, comes to the fore. This then creates a basis from which the Traditional and Khoisan Leadership Act 3 of 2019 and the Spatial Planning and Land Use Management Act 16 of 2013 are explored
Silence is Golden: The Lack of Direction on Compensation for Expropriation in the 2011 Green Paper on Land Reform
Get PDFThe government set the target for redistribution of land to 30% by 2014. They have adopted the "willing-buyer-willing-seller" model that relies on a voluntary transaction between farmers and government to acquire such land. Frustrated at the slow pace of land reform, the ruling party is starting to indicate that the state will in future rely on its expropriation powers to acquire such land.
Section 25 of the Constitution makes it clear that when the state expropriates property, compensation must be paid. The current act, the 1975 Expropriation Act, determines that such compensation must be market value, while the Constitution lists market value as only one of at least five factors that must be taken into account when determining compensation.
There have been various attempts at drafting legislation that will bring compensation practices in line with the Constitution, with the latest Bill published in March 2013. This article focusses on the Green Paper that preceded the Bill, and argues that not much direction is given on how compensation for expropriation should be calculated.
 
Judicial oversight for sales in execution of residential property and the National Credit Act
Get PDFPraktiese uitvoering word gegee aan ’n hofbevel wanneer ’n huis in eksekusie verkoop word. Verkope in eksekusie stel ’n party in staat om ’n hofbevel teen ’n skuldenaar af te dwing. So ’n afdwinging is belangrik vir regswerking. Die Nasionale Kredietwet 34 van 2005** is uitgevaardig om (meestal) prosedurele beskerming te bied aan skuldenaars, terwyl sake soos Jaftha v Schoeman en Gundwana v Steko Development verg dat howe geregtelike toesig het by bevele wat lei tot verkope van huise in eksekusie. Die pad tot hier was lank en soms deurmekaar. Howe het geworstel met die vraag of ’n bevel om ’n huis te verkoop in eksekusie sonder ’n hofbevel inbreuk maak op die grondwetlike reg tot toegang tot genoegsame behuising. Verskillende howe het tot verskillende gevolgtrekkings gekom. Alhoewel die probleem meestal opgelos is deur die Jaftha en Gundwana beslissings, is die sake waarin die howe met die vraagstuk geworstel het steeds belangrik om in die toekoms die howe te help om ’n balans te vind tussen die regte van die skuldeiser om haar hofbevel af te dwing, en die skuldenaar se grondwetlike regte.
In die artikel word die impak van die Nasionale Kredietwet op die skuldeiser se vermoë om ’n hofbevel te bekom teen ’n skuldenaar, sowel as die mees belangrike sake tot Gundwana wat handel oor die skuldeiser se vermoë om so ’n bevel af te dwing, bespreek. Die fokus is op hoe die hof die mededingende regte moet opweeg.
* This article is based on a paper that was prepared for, and presented at, the Annual Banking Law Update of the University of Johannesburg, held in Johannesburg 2012-05-23. I thank Prof Jannie Otto for clarifying the NCA and the process (and leading me to the “aha!” moment); Elizabeth de Stadler for making sure that I’m not talking too much nonsense as far as the NCA is concerned and Bafana Ntuli for his enthusiastic research assistance. Any remaining faults and shortcomings can only be attributed to my own stubbornness.
** ’n Nie-amptelike vertaling van die Nasionale Kredietwet 34 van 2005 is beskikbaar by http://www.vra.co.za/index.php?option=com_content&view =category&layout=blog&id=3&Itemid=3 (red)
The ‘Justice’ in ‘Just and Equitable’ Compensation
No full textBook chapter,This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993)
African Indigenous Land Rights in a Private Ownership Paradigm
Get PDFIt is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land.[1] He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access)[2] and who may control and manage the land resources on behalf of those who have access to it?[3] There is a link with this reconceptualisation and the discourse of the commons. Ostrom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity".[4] The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?
Application of Section 30 of the Restitution of Land Rights Act in the Courts: Some Guidelines
Get PDFIn terms of section 30 of the Restitution of Land Rights Act, the court is allowed to "admit any evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law". This means that the normal rules of evidence can be relaxed in the case of restitution claims. This articles analyses the way in which courts have dealt with the section, with a specific focus on oral histories. The paper also makes a few suggestions as to how courts can better grapple with the question in the future, to ensure that a strict adherence to the rules of evidence does not preclude justice in the context of land restitution claims.
 
Aboriginal Customary Law: A Source of Common Law Title to Land
Get PDFThis contribution provides a short review of the book by Ulla Secher on aboriginal customary law as a source of common law title to land.
 
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