Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

by | Sep 19, 2021 | SLR, SLR V32 I2

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

Author: Tina Kotzé

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Research fellow at the South African Research Chair in Property Law, Department of Public Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 185 – 214
https://doi.org/10.47348/SLR/2021/i2a1

Abstract

There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

by | Sep 19, 2021 | SLR, SLR V32 I2

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

Author: EJ Marais

ISSN: 1996-2193
Affiliations: BA LLB LLD, Senior Lecturer, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 215 – 233
https://doi.org/10.47348/SLR/2021/i2a2

Abstract

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

by | Sep 19, 2021 | SLR, SLR V32 I2

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) (cum laude) LLM (Cantab), PhD (Rhodes), Senior Lecturer, School of Law, University of KwaZulu Natal; Senior Honorary Research Fellow, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 234 – 252
https://doi.org/10.47348/SLR/2021/i2a3

Abstract

The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.

Transforming the Law on Psychiatric Lesions

by | Sep 19, 2021 | SLR, SLR V32 I2

Transforming the Law on Psychiatric Lesions

Author: Emile Zitzke

ISSN: 1996-2193
Affiliations: LLB LLD, Senior Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 253 – 271
https://doi.org/10.47348/SLR/2021/i2a4

Abstract

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

by | Sep 19, 2021 | SLR, SLR V32 I2

The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 272 – 287
https://doi.org/10.47348/SLR/2021/i2a5

Abstract

This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

by | Sep 19, 2021 | SLR, SLR V32 I2

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

Author: Delano Cole van der Linde

ISSN: 1996-2193
Affiliations: LLB LLM LLD (Stell), Senior Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 288 – 305
https://doi.org/10.47348/SLR/2021/i2a6

Abstract

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.