Academic literature on the topic 'Encroachment disputes – South Africa'

Thesis (LLD (Private Law))--University of Stellenbosch, 2010.<br>Bibliography<br>ENGLISH ABSTRACT: South African courts seem to be adopting a new approach to the problem of building encroachments. For pragmatic and policy reasons courts are now inclined to exercise its discretion in favour of leaving building encroachments in place, against compensation, despite the common law right to demand removal. It has been widely accepted that courts indeed have the discretion to award damages instead of removal of the building encroachment. However, the circumstances involved and the consequences of these orders are uncertain and hence these orders result in confusion. It is unclear how this discretion is exercised. Furthermore, it is uncertain whether this discretion includes the power to order transfer of the encroached-upon land to the encroacher. There are doctrinal and constitutional implications that may be triggered by these court orders that leave building encroachments in place. The doctrinal issues centre on what happens when an encroachment is not removed and nothing is said about the rights of the respective parties after the order is made. Possible solutions are investigated to provide a doctrinally sound outcome in encroachment disputes. It is clear that the encroacher is allowed to continue occupying the portion of property on which the encroachment is erected. It seems as though a use right is indirectly created when the encroachment remains in place. The constitutional difficulty lies in the fact that the court orders may result in infringements that conflict with section 25 of the Constitution. The focus is specifically to determine whether these orders result in the compulsory loss of property or property rights. With reference to Germany, the Netherlands and Australia, a comparative perspective is provided in order to support the doctrinal and policy arguments. The comparative law provides a source of guidelines for what may work effectively and informs the ultimate suggestion of this project, namely the need for legislation to regulate building encroachments in South Africa. The legislation envisaged would have to prescribe with at least some sort of certainty how and in which circumstances the discretion should be exercised. It should also provide clarity with regard to the right that is created when the encroachment is not removed and how the compensation that is awarded in exchange for removal, should be determined. The unnecessary confusion and uncertainty that result from court orders made in the context of building encroachments may be cleared up by legislation.<br>AFRIKAANSE OPSOMMING: Suid Afrikaanse howe begin al hoe meer om ‘n nuwe benadering te volg ten opsigte van oorskrydende bouwerke. Dit lyk asof howe meer geneig is om hul diskresie uit te oefen ten gunste daarvan om die oorskryding vir pragmatiese en beleidsredes teen vergoeding in stand te hou, ten spyte van die gemeenregtelike reg om verwydering te eis. Daar word algemeen aanvaar dat howe wel die diskresie het om in die konteks van oorskrydende bouwerke skadevergoeding toe te ken in plaas van verwydering. Die omstandighede betrokke by en die nagevolge van hierdie beslissings is egter onseker en daarom lei dit tot verwarring. Dit is nie altyd duidelik hoe hierdie diskresie uitgeoefen word nie. Daarbenewens is daar ook onsekerheid oor of die diskresie die bevoegdheid insluit om oordrag van die grond waarop die oorsrkryding staan, te gelas. Die beslissings kan ook doktrinêre en grondwetlike implikasies hê. In terme van die doktrinêre probleem is daar vrae oor wat gebeur as die oorskryding nie verwyder word nie en niks word gesê oor die regte van beide partye in die dispuut nie. Oplossings word ondersoek om die beste moontlike doktrinêre verduideliking te probeer vasstel. Die eienaar van die oorskrydende bouwerk mag voortgaan om die grond waarop die oorskryding staan te okkupeer. Dit lyk asof ‘n gebruiksreg indirek geskep word ten gunste van die oorskryder wanneer die oorskryding nie verwyder word nie. ‘n Grondwetlike probleem mag veroorsaak word deur die moontlike oortreding van artikel 25 van die Grondwet. Die beslissings mag lei tot die gedwonge verlies van grond of regte, wat aan die vereistes van artikel 25 moet voldoen. ‘n Vergelykende perspektief met verwysing na Duitsland, Nederland en Australië word verskaf om die doktrinêre en beleidsargumente te ondersteun. Die vergelykende reg bied ‘n bron van riglyne vir wat effektief kan werk en het dus die wetgewing wat in hierdie proefskrif voorgestel word geïnspireer. Die wetgewing wat beoog word sal moet voorskryf hoe en onder watter omstanghede die diskresie uitgeoefen moet word. Dit moet ook sekerheid gee ten opsigte van die reg wat geskep word as die oorskryding nie verwyder word nie en hoe die skadevergoeding bepaal moet word. Die onnodige verwaring en onsekerheid wat veroorsaak word deur hierdie hofbeslissings kan opgeklaar word deur die promulgering van wetgewing om oorskrydende bouwerke te reguleer.

After SACCOLA's expulsion from the International Organization of Employers in 1983 the committee decided to explore areas of domestic activity consistent with its objectives of discussing employer views on labour affairs, and representing these views where agreement amongst employers existed. As the National Manpower Commission had shortly afterwards published a lengthy report dealing, inter alia, with the role of the Industrial Court and the definition of the unfair labour practice concept, SACCOLA set up a working party to see if employer consensus could be achieved on these issues. SACCOLA succeeded in agreeing a 18 page document, which was submitted to the Department of Manpower on 28 August 1984. This was subsequently acknowledged by the Director General of Manpower to have been one of the most comprehensive reactions to this report. In his reaction to the report, however, Dr Van der Merwe noted that legislative change would be greatly facilitated by labour/employer agreement, and he therefore suggested that SACCOLA should discuss its proposals with union federations.

This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.

This treatise provides an overview of the procedures for the registration, regulation and protection of Internet domain names. An analysis of legal rules applicable to domain names and problems related to the protection of domain names in South Africa, United State, United Kingdom and internationally is undertaken. The problems includes cybersquatting, misuse of personal names, reverse domain hijacking, misuse of meta tags and keywords. The treatise established possible solutions applicable to South Africa by investigating how other countries have dealt with such problems, and further investigated the extent to which South African legislation is suited to deal with such problems. An investigation of the regulation in terms of the Electronic Communications and Transactions Act 25 of 2002 is briefly attempted, and proposals for the future on the South African domain name system suggested.

The study was conducted in Eastern Cape Province to 1) investigate local people’s knowledge and perceptions on Euryops floribundus and 2) landscape distribution and effect of Euryops floribundus on herbaceous vegetation and soil. A total of 90 households who own livestock were randomly selected from the three communal areas, namely; Tsengiwe, Upper Mnxe and Manzimdaka for household surveys and group discussions. For landscape study, a total of about 5 ha of land were selected at Upper Mnxe communal area. Selection criteria included the presence of E. floribundus and different landscape gradients. A total of four 50mx50 plots were marked along the landscape gradients: Bottom, Middle, and Upper Slope and upland positions. To study the effect of E. floribundus invasion on the herbaceous vegetation and soil, a total of 4 ha communal land was selected in an accessible area which had a largely flat terrain. The area was selected to have adjacent sites with no invasion (< 5% shrub cover), light (5-15% shrub cover), moderate (>15-35) and heavy invasions (>35% shrub cover) of E. floribundus. The average household size in the study area was 6.8± 0.7. All people in the three communal areas unanimously ranked sheep as the most important species for their livelihood, but the ranking of cattle and goat varied among the communal areas. All elder groups agreed that Europs floribundus decreases both the quantity and quality of herbaceous forage as well as livestock production. Moreover, invaded patches create more bare areas which are responsible for the loss of top fertile soils and the formation of rills and gullies. The result showed that the total density of E. floribundus significantly increased from the topland (2301 plants ha-1) moving to the bottomland (4888 plants ha-1). Canopy cover was significantly lowest in the topland (17.9%), but the remaining gradients had similar cover. Grass dry matter yield was higher in the bottomlands and sloppy gradients than the toplands. Soil organic carbon was significantly higher (P<0.05) in the flat than the sloppy terrain. Soils from higher elevations (toplands and upper sloppy) had significantly higher N than the lower elevations (bottomlands and Middle sloppy). The lowest dry matter was observed at low invasion and non-invaded sites. Soil chemical properties were generally different from all density levels. In conclusion, E. floribundus encroachment was found to be major cause of decline in the peoples’ livelihood because as this reduces the vegetation diversity and livestock production, both of which are the major of their livelihoods.

On 16 August 2012, the South African Police Service fired upon striking miners in Marikana, South Africa, resulting in the death of 34 mineworkers. The purpose of this study is to examine the effects of protracted violent industrial labour disputes on socio-economic development in South Africa. The study explores the root causes of labour disputes in Marikana and considers strategies that can be employed to avoid similar violent and destabilising strikes in the mining and other industries. This research confirms that presumably the pursuit of wage increase is still the primary cause of violent strikes in the country. Furthermore, the research shows clearly that working hours, work conditions, sympathy, and demands from employees and trade unions are major causes of labour disputes. The findings also show that amongst other things participation of employees in work related issues like policy formulation can reduce prevalence of labour disputes. The study also reveals that communication between workers and employees in work places can help both parties to discuss issues before extreme measures are taken.

Thesis (MScFor)--Stellenbosch University, 2002.<br>ENGLISH ABSTRACT: Increases in woody plant density ('bush encroachment') reduce livestock production and biodiversity. By convention, soil moisture, soil nutrients, fire and herbivory are regarded as the principal factors governing the tree-grass ratio of savannas. An experiment with a completely-crossed design was employed to investigate woody seedling (Acacia me/lifera) recruitment near Kimberley, Northern Cape, South Africa, after fire and under conditions of maximum-recorded rainfall, nitrogen addition and grazing. The field experiment was repeated as a garden experiment to determine if the two experiments yield comparable results. Tree germination in the field was extremely low, probably due to below-average natural rainfall in plots that only received natural rain, and insufficient watering frequency in irrigated plots. As a result of low germination, none of the treatments (rain/nitrogen/fire/grazing) had a significant effect on tree recruitment in the field experiment. The duration of the experiment (2000/2001 growing season) was insufficient for the treatments to affect grass composition, although the high rainfall treatment and grazing exclusion significantly improved grass cover and height. The garden experiment showed that frequent watering, no nitrogen addition and grass clipping significantly enhanced tree germination and survival (termed 'recruitment'). There were also significant interactions among rain, nitrogen and grazing in their effects on tree recruitment. The effects of rain on tree recruitment were more pronounced under nitrogen supplementation and vice versa. Similarly, high rain and high nitrogen enhanced the effect of grazing on tree recruitment. It is inferred that above-average rainfall years with frequent rainfall events are required for mass tree recruitment. Tree seedlings can further benefit from space and resources which are made available through grass defoliation. Conversely, nitrogen enrichment improves the competitive ability of the fast-growing grasses relatively more than that of the N2-fixing tree component, thereby suppressing tree recruitment. In contrast to conventional wisdom that grazing alone causes encroachment, it is suggested that there are complex interactions between the abovementioned factors and 'triggering' events such as unusually high rainfall. Contrary to many claims that equilibrium models are inappropriate for explaining savanna dynamics, it was shown that consumer-resource theory has explanatory power for bush-grass dynamics of the savanna studied. The state-space approach that was used facilitated the understanding of savanna dynamics and enabled predictions about the system's response to perturbations. The applicability of consumer-resource theory to semi-arid nutrient-poor savannas confirmed the importance of resource competition in structuring natural systems.<br>AFRIKAANSE OPSOMMING: Toenames in die digtheid van houtagtige plante ('bosverdigting') verlaag veeproduksie en biodiversiteit. Volgens konvensie word grondvog, grondvoedingstowwe, vuur en beweiding beskou as die belangrikste faktore wat die boom-gras verhouding van savannas bepaal. 'n Volledig-gekruisde ("completely crossed") eksperiment is ontwerp om boomsaad-ontkieming (Acacia mellifera) naby Kimberley, Noord-Kaap, Suid- Afrika, te bestudeer na 'n brand en onder toestande van maksimum-aangetekende reënval, stikstof toevoeging en beweiding. Die veldeskperiment is herhaal as 'n tuineksperiment om vas te stel hoe resultate van die twee eksperimente vergelyk. Boomsaad-ontkieming was uiters laag in die veld, waarskynlik weens ondergemiddelde reënval in persele wat slegs natuurlike reënvalontvang het, en 'n te lae benattingsfrekwensie in die besproeide persele. As gevolg van lae ontkieming in die veldeksperiment, het geen behandeling (reënval/stikstof/brand/beweiding) boomsaad-ontkieming beduidend geaffekteer nie. Die duur van die eksperiment (2000/2001-groeiseisoen) was te kort vir die behandelings om grassamestelling te beïnvloed, alhoewel besproeiing en geen beweiding die grasbedekking en -hoogte betekenisvol verhoog het. Die tuineksperiment het getoon dat boomsaadontkieming en vroeë oorlewing (genoem 'vestiging') betekenisvol verhoog is deur gereëlde benatting, geen stikstof toevoeging en die sny van gras. Daar was ook beduidende interaksies tussen reën, stikstof en beweiding in hul invloed op boomvestiging. Die reënbehandeling het 'n groter uitwerking op boomvestiging gehad onder stikstoftoevoeging en vice versa. Hoë reënval en stikstoftoevoeging het ook die invloed van beweiding op boomvestiging versterk. Die afleiding is dat bogemiddelde reënvaljare met gereëlde reënbuie 'n vereiste is vir grootskaalse boomvestiging. Boomsaailinge kan verder voordeel trek uit die spasie en hulpbronne wat beskikbaar raak wanneer gras ontblaar word. Daarteenoor verhoog stikstofverryking die mededingendheid van die vinniggroeiende grasse meer as dié van die N2-bindende boomkomponent, met die gevolg dat boomvestiging onderdruk word. In kontras met die konvensionele veronderstelling dat beweiding opsigself bosverdigting veroorsaak, word voorgestel dat ingewikkelde interaksies plaasvind tussen die bogenoemde faktore en ander 'sneller-gebeurtenisse', soos buitengewoon hoë reënval. In teenstelling met baie aansprake dat ekwilibrium modelle ontoepaslik is om savanna-dinamika te verklaar, is getoon dat die verbruikers-hulpbron teorie ("consumer-resource theory") oor verklaringsvermoë beskik vir boom-gras dinamika van die savanna wat bestudeer is. Die staat-spasie ("state-space") benadering gebruik, het begrip van savanna-dinamika bevorder en voorspellings moontlik gemaak aangaande die sisteem se reaksie op versteurings. Die toepaslikheid van verbruikers-hulpbron teorie vir semi-ariede, nutriënt-arm savannas bevestig dat kompetisie vir hulpbronne 'n sentrale rol speel in die strukturering van ekologiese sisteme.

The minor dissertation is structured as follows: After a short overview about mediation as one mechanism to resolve environmental disputes and the advantages respectively disadvantages of this kind of alternative dispute resolution, the focus shifts in paragraph C to the use of mediation to resolve environmental disputes in Switzerland. On the basis 4 of several cases in which mediation or mediation-type activities were used to resolve the environmental conflict I want to show why, in the end, environmental mediation probably will never be so widespread in Switzerland as it is in other countries. The paragraph ends with a case study about mediation experiences in Switzerland over nuclear waste disposal. Nevertheless, this aforementioned case study shows that the Swiss decision-making system offers a good basis for mediation procedures in areas of politics where there is yet little participation as longs as certain preconditions for a successful procedure are fulfilled. In paragraph D I deal with the use of mediation in South Africa to resolve environmental disputes. The focus shifts in a first step on the National Environmental Management Act (NEMA), especially Chapter 4 NEMA which deals with Alternative Dispute Resolution and, in particular, with environmental mediation. In a next step I examine if this Chapter has been already implemented or if there is still a big gap between theory and practice. Finally, paragraph D ends with two South African cases in which mediation was involved to resolve the dispute and a comparison of the two procedures.

Communal rangelands occupy 13 percent of the agricultural land in South Africa, and these rangelands serve as a source of feed to livestock. These areas are threatened by bush encroachment due to poor rangeland management. This study was conducted in Alice (Sheshegu communal area) and the objective was to assess farmers' perceptions and the impact of bush encroachment on herbaceous vegetation and soil nutrients. Structured questionnaires were used to assess indigenous knowledge of communal farmers on the impact of bush encroachment on rangelands. Fourty (40) respondents from households who owned livestock were randomly selected and interviewed at Sheshegu village. About 89 percent of communal farmers perceived that change of their grasslands to encroached savannas was caused by unreliable rainfall, prolonged drought, and poor rangeland management. Rangeland assessment was performed at four sites (Scattered, Moderate, Mixed and Dense bushland. 100mx50m were demarcated per site, and four 100m transects were laid parallel to each other, 30m apart. The step point method was used to determine both species composition and basal cover. Biomass production was determined by harvesting forage within randomly-paced a 0.25m2 quadrats. Aristada congesta and Eragrostis obtuse were the most dominating grass species in dense, mixed and moderate bushland. Scattered bushland was dominated by Themeda triandra. Biomass production increases with increase in bush density and basal cover improved from winter to summer season. Increaser grass species increase with the increase in bush density, this indicated that the rangeland was poorly managed and palatable species were being replaced by less palatable ones. Species composition of woody plants was determined within a 200m2 belt transect in all sites. Maytenus polycantha, Aloe ferox, Erehia rigida and lucas capensis were the most dominant woody species in Mixed bushland while Acacia karroo was most dominated in Scattered, Moderate and Dense bushland. Woody density showed no significant differences (P> 0.05) between Dense, Mixed and Moderate bushland. Woody plant density in all these sites exceed 2500 plants/ha, which showed that the rangeland was encroached with woody plants. Soil nutrient content was determined for each site. Five samples of soil were collected per site to test the effect of bush encroachment on soil nutrient composition. The concentration of nitrogen and soil pH increased with increase in bush density, while that of potassium, phosphorous, magnesium, sodium and sulphur showed no significant differences (P>0.05) across all homogenous vegetation units. The study revealed that Sheshegu communal farmers are aware of both negative and positive effects of encroachment on their community, and also argue that the government is not willing to support communal farmers in the process of reducing the spread of bush encroachment. It was concluded that the concentration of nitrogen and soil pH increased with increasing bush density and that bush encroachment had negative effects on herbaceous species. It was recommended that communal farmers should be formulating rangeland rules and regulations to manage rangeland resources. Rangeland rules and regulations should be based on the management of livestock management during grazing and harvesting of rangeland resources. The harvesting of woody and good timing of application of fire can also reduce the spread of bush encroachment. Veld resting and rotational grazing can also improve fuel load which is required for burning of woody plants. Furthermore, Department of agriculture should also provide workshops or training to communal farmers use different approaches or cheap ways of reducing bush encroachment and conserving rangeland resources.

Thesis (M. A. (Sociology)) --University of Limpopo, 2017<br>The purpose of this study was to explain the events surrounding the Marikana miners’ strike in 2012, using Marxism’s concept of class consciousness. The labour disputes witnessed at Marikana in 2012 represent one of the major labour movements that South Africa has witnessed since the inception of democracy. This study adopted qualitative research methods to inquire into the events of the Marikana 2012 labour disputes. Methods used in this study include qualitative research, descriptive research design, Marxism critical inquiry, purposive sampling and critical discourse analysis. Moreover, the study investigated employee relations in the mining sector. In addition, this study also examined the Marikana miner’s working and living conditions and probed the role of social control agencies, including, trade unions, bargaining councils and the police, during the protests. This study proposes a fair distribution of wealth in the mining sector and the removal of the Migrant Labour System. Additionally, this study recommends transparency in the mining sector, the transformation of the education system and the restructuring of trade unions.<br>University of Limpopo Research Office