Dissertations / Theses on the topic 'Property – Legal obligation – South Africa'

Thesis (LLD)--Stellenbosch University, 2012.
ENGLISH ABSTRACT: Ownership, and especially the ownership of land, consists of rights as well as duties. The social responsibilities of the owner depend on the prevailing needs of the public (as expressed in legislation) and are subject to change. Section 25(1) of the Constitution impliedly recognises the social obligations of the property owner insofar as it confirms that ownership can be regulated by the state in the public interest. Section 25(1) also sets requirements for the interference with property rights and, in so doing, recognises that the social obligations of the property owner are not without boundaries. In its landmark FNB decision the Constitutional Court gave content and structure to a section 25(1) challenge. The Constitutional Court held that deprivations will be arbitrary for purposes of section 25(1) if the law of general application does not provide sufficient reason for the deprivation or is procedurally unfair. The Constitutional Court elaborated that ‘sufficient reason’ had to be determined with reference to eight contextual factors which reflect the complexity of the relationships involved in the dispute. With reference to section 25(1) and FNB this dissertation considers the constitutional implications of two types of statutory interference with the owner’s right to use, enjoy and exploit his property. Firstly, the dissertation considers the owner’s statutory duty in terms of the National Building Regulations and Building Standards Act 103 of 1977 to demolish unlawful and illegal building works in certain instances. Secondly, the dissertation considers the limitations imposed by the National Heritage Resources Act of 25 of 1999 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) on the owner’s right to demolish historic or unlawfully occupied structures. This dissertation argues that building and development controls, historic preservation laws and anti-eviction legislation are legitimate exercises of the state’s police power. Generally, these statutory interferences with ownership will not amount to unconstitutional deprivation of property. Nevertheless, there are instances where regulatory laws cannot be applied inflexibly if doing so results in excessive interferences with property rights. The FNB substantive arbitrariness test indicates when the law imposes disproportionate burdens on land owners. Furthermore, the non-arbitrariness tests shows when it might be necessary to mitigate disproportionate burdens, imposed in terms of otherwise legitimate regulatory laws, by way of German-style equalisation measures, which are comparable to the constitutional damages granted by South African courts. This dissertation concludes that in the past century the South African legal system has progressed from the apartheid regime, which protected the rights and interests of the white minority, to a constitutional regime which safeguards the rights of all South Africans. There are two legal developments that may lead to positive change in the next century, namely active pursuance of the notion that ownership consists of rights and duties and the development of equalisation-style measures, incorporated into legislation, to alleviate excessive burdens imposed on property owners in the public interest.
AFRIKAANSE OPSOMMING: Eiendomsreg, veral eiendomsreg op grond, bestaan uit regte sowel as pligte. Die sosiale verantwoordelikhede van die eienaar word bepaal deur die heersende behoeftes van die publiek (soos in wetgewing beliggaam) en is onderhewig aan verandering. Artikel 25(1) van die Grondwet erken implisiet die sosiale verpligtinge van die eienaar in soverre dit bevestig dat eiendomsreg nie ʼn absolute reg is nie en dat dit deur die staat in die openbare belang gereguleer kan word. Artikel 25(1) koppel vereistes aan statutêre beperkings wat op die eienaar se regte geplaas kan word en erken daardeur dat die sosiale pligte van die eienaar nie onbegrens is nie. In die invloedryke FNB-beslissing het die Grondwethof inhoud en struktuur aan grondwetlike analise ingevolge artikel 25(1) gegee. Die Grondwethof het bepaal dat ʼn ontneming arbitrêr sal wees vir die doeleindes van artikel 25(1) as die algemeen geldende reg nie genoegsame rede vir die ontneming verskaf nie of as die ontnemingsproses prosedureel onbillik was. Die Grondwethof het uitgebrei dat ‘genoegsame rede’ bepaal moet word met verwysing na agt kontekstuele faktore wat die kompleksiteit van die verhoudinge wat in die geskil betrokke is, weerspieël. Met verwysing na artikel 25(1) en FNB oorweeg hierdie proefskrif die grondwetlike implikasies van twee tipes statutêre beperkinge wat deur wetgewing op eienaars se regte geplaas word. Eerstens neem die proefskrif die eienaar se statutêre plig ingevolge die Wet op Nasionale Bouregulasies en Boustandaarde 103 van 1977 om onwettige en onregmatige geboue en bouwerke te sloop, in oënskou. Tweedens oorweeg die proefskrif die beperkinge ingevolge die Wet op Nasionale Erfenishulpbronne 25 van 1999 en die Wet op die Voorkoming van Onwettige Uitsettings en Onregmatige Besetting van Grond 19 van 1998 op die eienaar se reg om historiese en onregmatige bewoonde strukture te sloop. Die proefskrif betoog dat bou- en ontwikkelingsbeheermaatreëls, historiese bewaringswette en uitsettingsvoorkomingswetgewing legitieme uitoefening van die staat se polisiëringsmag is. In die algemeen sal hierdie statutêre inmenging nie uitloop op ongrondwetlike ontneming van eiendom nie. Nietemin is daar gevalle waar die regulerende wette nie onbuigsaam toegepas kan word nie indien dit tot uitermatige inmenging met die eienaar se regte lei. Die FNB-toets vir substantiewe arbitrêre ontneming dui aan wanneer ‘n wet ʼn disproporsionele las op grondeienaars plaas. Verder wys die FNB-toets wanneer dit nodig mag wees om oneweredige laste, wat deur andersins regmatige regulerende wette opgelê is, te versag. Dit kan gedoen word deur middel van ʼn statutêre maatreël, geskoei op Duitse voorbeeld, wat vergelykbaar is met grondwetlike skadevergoeding wat deur Suid-Afrikaanse howe toegeken is. Hierdie proefskrif kom tot die gevolgtrekking dat die Suid-Afrikaanse regstelsel oor die afgelope eeu ontwikkel het van die apartheidsbestel, wat die regte en belange van die wit minderheid beskerm het, tot die huidige grondwetlike bestel wat die regte van alle Suid-Afrikaners beskerm. Twee ontwikkelinge kan tot positiewe verandering in die volgende eeu lei, naamlik aktiewe bevordering van die gedagte dat eiendomsreg uit regte en verpligtinge bestaan en ontwikkeling van statutêre maatreëls wat die uitermatige las wat in die openbare belang op eienaars geplaas word, te verlig.

The use of indigenous knowledge (IK) and indigenous bio-resources by pharmaceutical and herbal industries has led to concerns about the need to protect IK in order to prevent biopiracy and the misappropriation of indigenous knowledge and resources. While some commentators believe that intellectual property rights (IPR) law can effectively protect IK, others are more sceptical. In order to contribute to the growing debate on this issue, this study uses the relatively new and as yet largely critically unanalysed Masakhane Pelargonium case to address the question of whether or not IPR law can be used to effectively protect IK. It is argued here that discussion about the protection of IK is a matter that must be located within broader discussions about North-South relations and the continued struggle for economic and political freedom by indigenous people and their states. The Masakhane case suggests that IPR law in its current form cannot provide sufficient protection of IK on its own. Incompatibilities between IPR law and IK necessitate that certain factors, most important of which are land, organised representation, and what are referred as 'confidence and network resources', be present in order for IPR law to be used with any degree of success. The study also reveals various factors that undermine the possibility of using IPR law to protect IK. In particular, the study highlights the way in which local political tensions can undermine the ability of communities to effectively use IPR law to protect their knowledge. The thesis concludes with several recommendations that will enable indigenous communities and their states to benefit more substantially from the commercialisation of their bio-resources and associated IK.

This thesis discussed the subjects of bioprospecting and the protection of traditional knowledge. At first the international approach to the subjects was elaborately discussed. The focus was on the respective provisions of the United Nations Convention on Biological Diversity and the related Bonn Guidelines, stressing the matter of access to genetic resources and the fair and equitable sharing of benefits arising from their utilization. Enclosed in this discussion was the examination of different legislatory approaches to tackle the subject with an emphasis on national intellectual property rights laws and the role and potential merit of national registers of and databases for specific traditional knowledge. The way national legislators have implemented the concerned obligations of the convention, and their peculiarities as for example the restriction of scope of law to indigenous biological resources, was exemplified with the respective Bolivian, South African as well as Indian laws.

Over the past decade, the regulation of mining in South Africa has undergone a fundamental transformation in order to promote equitable access to the nation’s mineral and petroleum resources. The Mineral and Petroleum Resources Development Act 28 of 2002, drastically changed the regulation of mining by placing the nation’s mineral and petroleum resources under the custodianship of the state. The transformative objectives of resource reform, as envisaged in the Constitution of the Republic of South Africa, 1996, could however not be achieved without a measure of sacrifice -- most notably, that which had to be shouldered by the owners of the land in which the minerals are contained. Under common law, minerals vested in the owners of land and no one could compel them to extract or consent to the extraction of these minerals. Landowners were able to safeguard their land from mining activities by refusing to consent to mining. The Mineral and Petroleum Resources Development Act, 2002, changed this by providing that landowners could no longer prevent the state from granting qualifying applicants authorisation to mine. The transformative objectives of resource reform, have inevitably made great inroads into a landowner’s rights to use and enjoy his property optimally. The main focus of this study revolves around the limiting impact of South Africa’s current mineral-law dispensation on township development, and conversely, how township development impairs or limits the mining of coal. For a better understanding of the limitations which the current legislative provisions create in respect of the rights of landowners and holders of mining rights, a brief evaluation of the historical development of the right to mine coal is provided. The entitlements and reciprocal obligations of holders of mining rights and owners of the affected land are considered, and the parties’ legal remedies to resist interference in their respective rights are explored. In the process of considering possible remedies to resolve the conflict which inevitably arises, I explain why English-law principles governing lateral support (support owed by two adjacent properties [neighbour law]), and subjacent support (where the landowner may not be deprived of the vertical support his property derives from the sub-surface minerals) were incorrectly transplanted into our law. In Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd, the South African Supreme Court of Appeal rejected the previously-held view that the right to subjacent support -- like the right to lateral support -- is a natural property right incidental to the ownership of the land. It was further held that conflict between holders of rights to minerals and owners of land should be resolved, not in accordance with English-law principles of neighbour law, but in terms of the law developed for rights relating to the use of servitudes. In summary, the court found that where the parties have not specifically contracted against the specific action (such as opencast or planned-subsidence mining), and provided that it was reasonably necessary for the mining right holder to use this invasive method, he may do so, so long as he does so in the manner least injurious to the entitlements of the surface owner. This decision, however, did not take into account the changes brought about by the comprehensive statutory framework of the Mineral and Petroleum Resources Development Act 28 of 2002 which I argue has replaced the earlier servitude construction. In this dissertation I consider whether possible solutions to resolve the conflict can be found in the principles relating to neighbour law, and whether the principles governing the use of servitudes remain relevant in resolving conflicts between landowners and holders of mining rights. I evaluate possible legal remedies and place special emphasis on the constitutionality of the curtailment of a landowner’s use and enjoyment of his property resulting from mining activities on or under his land. I further consider whether the exercise of a mining right, granted by the state, which results in a serious infringement of a landowner’s ownership, could in certain circumstances amount to a deprivation or possibly an expropriation in terms of section 25 of the Constitution. I discuss the position where the state’s regulatory interference is so severe that it deprives a landowner of the ability to exercise any, or a substantial portion of his ownership entitlements. I evaluate the possibility that such interference may constitute de facto expropriation for which compensation may be claimed. In the penultimate chapter I briefly mention how the relationship between landowners and holders of mining rights is managed and conflict is defused in other jurisdictions such as China, Australia, the United States of America, India, Germany and Swaziland. I conclude this dissertation with suggestions on possible ways in which the conflict may be resolved or at least minimised in future.
Die regulering van mynbou in Suid-Afrika het die afgelope dekade ‘n fundamentele verandering ondergaan ten einde breër toegang tot die nasie se minerale en petroleum hulpbronne te bevorder. Die Mineral and Petroleum Resources Development Act,6 Wet 28 van 2002, het ‘n radikale ommekeer in die mynbou industrie meegebring deurdat die regulering van mynbou aktiwiteite onder die toesig en beheer van die nasionale regering geplaas is. Die transformatiewe oogmerk van hulpbron hervorming ingevolge die Grondwet van die Republiek van Suid-Afrika kon egter nie geskied sonder ‘n mate van opoffering nie. Die grootste aanslag van die nuwe mineraalreg bedeling word sonder twyfel gevoel deur die eienaars van grond ten opsigte waarvan mynregte deur die regering aan ‘n ander party toegeken word. Ingevolge die gemenereg was die eienaar van grond voorheen ook die eienaar van die minerale wat in die grond voorgekom het. Gevolglik was dit onder die uitsluitlike beheer van die eienaar om te bepaal of enigiemand anders die reg kon verkry om minerale op of in die betrokke grond te ontgin. Na aanvang van die inwerkingtreding van die Mineral and Petroleum Resources Development Act is hierdie posisie egter omvêrgewerp aangesien die regering voortaan die bevoegdheid het om te bepaal wie en op watter voorwaardes iemand die reg verkry om minerale te ontgin. Die toekenning van die reg om minerale te ontgin op ‘n ander se eiendom sonder die eienaar se toestemming, maak dus ernstige inbreuk op sy regte. Grondeienaars se bevoegdhede wat uit hul eiendomsreg voortvloei word in talle gevalle ernstig ingeperk ten einde die oogmerke van hulpbron transformasie te bereik. Die ondersoek wat hierna volg, is daarop toegespits om die beperkende aanslag van die regulering van steenkoolmynbou-aktiwiteite op die ontwikkeling van dorpsgebiede asook dié van die ontwikkeling van dorpsgebiedie op steenkoolmynbou beter te verstaan. Ten einde hierdie invloed beter te verstaan, word die geskiedkundige ontwikkeling van die reg om minerale in Suid-Afrika te ontgin kortliks oorweeg. Die regte en verpligtinge van die houers van mynregte en die eienaars van die grond wat deur die uitoefening daarvan geraak word, asook die remedies waaroor die onderskye partye beskik ten einde hul regte teen inbreukmaking deur die ander party te beskerm, word daarna oorweeg. In genoemde ondersoek toon ek aan waarom die Engelsregtelike burereg- beginsels van laterale steun en onderstut nie toepassing in ons reg behoort te vind nie en waarom die botsing wat ontstaan vanweë die uitoefening van die grondeienaar en die houer van ‘n mynreg se regte liefs versoen moet word deur die Suid-Afrikaanse serwituutreg beginsels toe te pas soos aangetoon in die beslissing van Anglo Operations Ltd v Sandhurst Estates. Hiedie beslissing het egter nie die veranderinge wat meegebring is deur die nuwe bedeling van die Mineral and Petroleum Resources Development Act in ag geneem nie en daar word gevolglik aangevoer dat die serwituut beginsels vervang is deur ‘n breedvoerige wetgewende stelsel. Die grondwetlikheid van die beperking op die bevoegdhede van ‘n grondeienaar om sy eiendom te gebruik en te geniet, word ondersoek, asook of daar enige gronde vir ‘n eis om skadevergoeding mag wees. In besonder word daar oorweeg of die leerstuk van konstruktiewe onteiening moontlik toepassing kan vind in gevalle waar die staat se regulering ‘n uitermatige beperkende effek het op die bevoegdhede van ‘n grondeienaar om sy eiendomsreg uit te oefen. In die voorlaaste hoofstuk ontleed ek baie kortliks hoe die verhouding tussen eienaars van grond in mynbougebiede en houers van regte om minerale te ontgin in Sjina, Australië, die Verenigde State van Amerika, Indië, Duitsland en Swaziland gereguleer word. Ter afsluiting word aandag gegee aan moontlike maniere om die belangebotsing tussen die betrokke partye uit die weg te ruim of te beperk.
Private Law
LL.M.

Biological diversity is defined in Article 2 of the Convention on Biological Diversity as the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. This, includes diversity within species and of ecosystems. Biological diversity and its components is valuable in meeting the social, economic, scientific, educational and other human needs. Biological diversity is also important for revolution and maintaining of life sustaining systems of the biosphere. For many years biological resources were treated as coon heritage of mankind; free access was consequently accepted. Most of the genetic resources used for developing new products originated from developing countries in the South; on the other hand research and development in respect of new technologies is carried out mostly by firms in developed countries in the North. New products resulting thereof are subsequently protected by the intellectual property rights (IPR). It is now recognised that new products using biological resources benefit directly or indirectly from indigenous knowledge. Such knowledge is of significant value for the understanding of the natural environment and for sustainable use of natural resources. However, the contribution made by these communities does not receive the same recognition or protection as products which benefit from their knowledge. Existing IPR systems were not designed to extend benefits to indigenous knowledge. Changes in this area were necessitated by concerns about the significant reduction of biological diversity due to certain human activities. These concerns coupled with the recognition that issues of conservation of biological resources cannot be dealt with without addressing issues of equity in access to and sharing of both genetic resources and technologies, recognition of the role of indigenous and local communities, eradication of poverty and international co-operation among others. The Convention on Biological Diversity entered into force in 1993 as a global effort into addressing these issues. It is recognised in the Convention that access to and transfer of technology among members are essential elements for the attainment of its objectives. Parties are therefore called upon to facilitate access and transfer technologies that are relevant to conservation and sustainable use. Protection to IPR holders is provided by the requirements that access to and transfer of technology which is subject to patents and other IPR is to be provided on terms which recognise and are consistent with the adequate and effective protection of IPR. The relationship between environmental protection and IPR is thus made an important issue which may influence implementation of the Convention. This thesis focuses on the study of national and international IPR regimes and their role in implementation of the provisions of the convention. Limitations of these regimes are identified, recent developments in addressing these limitations are analysed and possible alternatives are proposed. This study purports to supplement global efforts to effectively implement provisions of the Convention.
Thesis (Ph.D.)-University of Durban-Westville, 1999.

M.A.
In terms of the Constitution, municipalities have a mandate to govern, to provide services and to promote social and economic development. Several pieces of legislation enhance the developmental role of local government, such as the Development Facilitation Act, 1995 (Act 67 of 1995) empowering municipalities to establish statutory land development objectives setting out a clear approach to land development for each municipality. The objects of local government as stipulated in section 152 of the Constitution of the Republic of South Africa , serve as a guideline in fulfilling its role and functions. The Integrated and Development Plan approach is more appropriate in facilitating efficiency and effectiveness in municipalities. Several provinces have passed regulations requiring that the land development objectives also cover economic development goals.The Department of Provincial and Local Government (DPLG) is compelled by law to use the Integrated Development Planning (IDP) and this is likely to shape the actions of local government in implementing policies intended to reduce poverty and inequality. A municipality must structure and manage its administration and planning process to give priority to the basic needs of the community and to promote the social and economic development of the community, according to the Constitution of the Republic of South Africa. Only when the majority of the citizens receive at least a lifeline supply of basic-need services and goods, can equity be achieved. This study focuses on the City of Johannesburg's constitutional obligation to promote local economic development. The study is limited in this way to make it more manageable. This area is selected on the basis that there is a diversity of people whose economic levels are highly different and therefore there is a need for LED. A municipality's approach to street traders in, for example, former Black township areas, is likely to be quite different to approaches in CBDs. The study is mainly a historical study of both published literature and unpublished material concerning municipalities' constitutional obligations to promote LED. The study is trying to pin down facts, and identify trends, in a rapidly changing environment.

This research examines the legal issues surrounding killing in defence of property in three selected jurisdictions: South Africa, Cameroon and the United States. The comparative analysis illustrates that although the right to protect one’s property is universal, this defence is interpreted differently in the various jurisdictions. Another issue considered in the study is the constitutional right to life in each jurisdiction and whether or not an unlawful attack against one’s property creates a legal entitlement for the attacked party to take the life of another in defence of his or her property. Private defence of property is available when a person uses force to defend an interest in property, for example; to prevent a would-be thief from taking his own, or another’s property, to prevent someone from damaging his own or another’s property, to prevent an intruder from entering his own or another’s property. When an accused pleads private defence, his claim is that his harm-causing conduct was, in the circumstances, lawful. The reasonable use of force (short of deadly force) in the private defence of property is not disputed. However, the use of deadly force in protection of property is controversial, especially in a constitutional state such as South Africa where life should be prized above property. One should however also consider that there is a close link between the private defence of defending life and of protecting property. In many cases, an assault on property also involves a threat on life. However, there are cases of private defence of property where no threat to bodily integrity exists. These situations will be examined in all three jurisdictions and measured against the various constitutional imperatives. Conclusions and recommendations are made as regards the legal framework on the defence of property in the criminal law of the various jurisdictions.
Criminal and Procedural Law
LL. M.

The movement of people from county to country brought about an increase in international marriages. However, South African private international law rules with regard to the proprietary consequences of marriage are not on par with their foreign counterparts. The prejudicial rule which governs proprietary consequences of marriage has raised difficulties for our courts in past and recent cases. The advent of a new constitutional dispensation in South Africa forbids discrimination based on sex, gender and marital status. Furthermore, the question is asked whether parties to a marriage with a foreign matrimonial domicile may rely on section 7(3) of the Divorce Act 70 of 1979. The classification of redistribution orders in private international law matters has given rise to uncertainty. The objectives of the study are to suggest workable alternatives to the current connecting factor for proprietary consequences of marriage in South African private international law and to investigate the availability of redistribution orders to spouses applying for divorce in South Africa.
Private Law
LL. M.

Rural women‘s land rights in South Africa remain secondary in spite of laws founded on a constitution that promotes gender equality. Patriarchal customary laws prevail and women‘s land rights and use security are inextricably linked to their relationships with their male relatives. Rural women are key producers of agricultural products due to historical and continued male outward migration, which has led to a feminisation of agriculture. Although women farm the land, their land use security is poor and can be further threatened by divorce or widowhood. Given that most vulnerable women are based in rural communal South Africa, how can their land rights be secured under the customary law framework? While the statutory law framework seems to provide a solution, it is less applicable in rural areas where customary law and traditional practices prevail. If statutory law cannot be superimposed on the existing customary law framework, how can women‘s land use be further secured to support their household food security efforts? What kind of framework can be introduced to strengthen women‘s land use security? A study was conducted in rural Limpopo Province to explore this complex and yet important question. A mixed methods approach comprising interview style questionnaires with a mixture of closed and open-ended questions, coupled with focus group discussions and observation was employed. Qualitative data from the focus group discussions and open-ended questions was analysed for common themes using content analysis. Quantitative data was analysed using SPSS to establish descriptive data, frequencies and establish the relationships between variables. Results of the analyses were used for building blocks to develop a land rights framework that is more gender sensitive and secures the rights of the actual land users. Women‘s land rights were largely confirmed to be secondary and land use security was linked to the continued relationship to male relatives through marriage and natural blood lines. From these findings, a gender sensitive framework that enables and improves land-based food security efforts has been proposed.
Thesis (M.Sc.Agric.)-University of KwaZulu-Natal, Pietermaritzburg, 2013.

E-commerce is growing rapidly due to the massive usage of the Internet to conduct commercial transactions. This growth has presented both customers and merchants with many advantages. However, one of the challenges in E-commerce is information security. In order to mitigate e-crime, the South African government promulgated laws that contain information security legal aspects that should be integrated into the establishment of information security. Although several authors have written about legal and policy aspects regarding information security in the South African context, it has not yet been explained how these aspects are used in the provision of information security in the South African corporate environment. This is the premise upon which the study was undertaken. Forty-five South African organisations participated in this research. Data gathering methods included individual interviews, website analysis, and document analysis. The findings of this study indicate that most organisations in South Africa are not integrating legal aspects into their information security policies. One of the most important outcomes of this study is the proposed Concept Model of Legal Compliance in the Corporate Environment. This Concept Model embodies the contribution of this study and demonstrates how legal requirements can be incorporated into information security endeavours. The fact that the proposed Concept Model is technology-independent and that it can be implemented in a real corporate environment, regardless of the organisation’s governance and management structure, holds great promise for the future of information security in South Africa and abroad. Furthermore, this thesis has generated a topology for linking legislation to the provision of information security which can be used by any academic or practitioner who intends to implement information security measures in line with the provisions of the law. It is on the basis of this premise that practitioners can, to some extent, construe that the integration of legislation into information security policies can be done in other South African organisations that did not participate in this study. Although this study has yielded theoretical, methodological and practical contributions, there is, in reality, more research work to be done in this area.
School of Computing
D. Phil. (Information Systems)

A real security right improves a creditor’s chances of recovering a debt owed to him by the debtor. In the case of an ordinary pledge, the pledgor delivers physical control of his movable property to his creditor to serve as security for the repayment of the principal debt. The increasing value and use of movable property as an object of security coupled with technological advancement have resulted in many countries calling for legal reform of real security rights over movable property. In South Africa this led to the introduction of the Security by Means of Movable Property Act 57 of 1993 which makes provision for a pledge without possession. The Act regulates only special notarial bonds and does not apply to general notarial bonds. The real security right vests in the bondholder upon registration of the bond, provided that the movable property encumbered is described in a notarial bond in a way that makes it readily recognisable. The Act has substituted delivery with registration in the Deeds Registry. Registration of the notarial bond in the Deeds Registry is questioned as to whether it complies with the publicity principle. This is because movable property can be shifted from one place to another without any knowledge on the part of the creditor due to the inaccessible and costly registration system. The third party then receives the property subject to the real security right of the creditor. The substitution of delivery with registration is the controversial feature in this study. Linked to the legal problems regarding compliance with the publicity principle, is the description and identification requirement as provided for under the Act, the exclusion of general notarial bonds from the application of the Act, and the question of whether it is appropriate to regard special notarial bonds as pledges without possession. This study questions whether the current land registry system should be used for the registration of notarial bonds and suggests that a new system designed specifically for the registration of real security rights over movables be considered. I compare the position in the Belgian legal system as regards developments in real security rights over movables to identify possible solutions and recommendations for the South African approach.
Private Law
LL. M.

According to Section 29(1) of the Constitution of the Republic of South Africa, 1996 everyone is entitled to and has the right to basic education. “Everyone” includes disabled learners. The international framework regarding the right to basic education and the accessibility of the infrastructure for physically disabled learners in public schools was examined to determine whether or not South Africa complies with the formalities and obligations prescribed and what the implications are, if the state does not comply. To reach the purpose of the above statement made there has to be determined which legislation is applicable to disabled learners and a definition needs to be provided for the term „physical disability‟ (Chapter 1). Secondly the core of the research question concealed in the above statement and its applicable articles will be discussed as seen in General Comment No. 13 of the International Covenant on the Economic, Social and Cultural Rights (Chapter 2). Thereafter international legislation will be discussed with the focus on basic education, disability, the accessibility of the infrastructure and the obligations placed on the state (Chapter 3 and 4). The focus will then be moved to the regional framework and the provision made with regards to the right to basic education and disability (Chapter 5). The relevant constitutional sections will then be investigated before reaching a conclusion. The sections that will be taken into account are sections 7, 9, 28, 29, 36, 39 and 233 of the Constitution of the Republic of South Africa, 1996. The purpose of the investigation of the constitutional sections is to determine what basic education entails and if there is a uniform definition thereof. A further purpose with the investigation of the constitutional provisions is to determine whether there is an infringement of disabled learners„ rights to equality and to basic education. Another purpose is to determine to which extent South African schools are accessible to disabled learners in the provision of infrastructure of school buildings as it is now and the obligation that rests on the state to adapt the infrastructure (Chapter 6). After the discussion of the above mentioned chapters a conclusion will be reached on to what extent the state complies with its constitutional and international obligations to realize disabled children„s right to basic education can be come to (Chapter 7). The inaccessibility of public school buildings in South Africa and disabled children„s need for basic education has led to the research question.
LLM (Comparative Child Law), North-West University, Potchefstroom Campus, 2015

This research explored, described and explained the nature and the extent of heritage crime as it manifested in the Gauteng Province of South Africa for the period 2006-2010. Gauteng was selected since it is deemed to be the hub of the legal trade. An operational definition of heritage objects was drafted for this study as ‘objects of artistic, cultural, historic or archaeological value regardless of age, housed in or curated by museums or galleries within Gauteng, and which are both tangible and moveable.’ Heritage crime for the purpose of this study was the illegal removal of any heritage object from a museum or gallery. The annual crime statistics released by the South African Police Services (SAPS) contain no reference to heritage crime of any sort. Therefore this research attempted to quantify the incidents of thefts experienced by museums and galleries in Gauteng for the period 2006-2010. Using a mixed method approach, data were gathered by qualitative and quantitative surveys. A total of 28 qualitative interviews were conducted. These data were integrated with the quantitative data which permitted the achievement of the strategic aims set out for this research. The following aims were achieved: • The roles and responsibilities of the custodians of the national estate were clarified; • International conventions designed to assist in combating crime perpetrated against cultural property were discussed; • The national legislation which guides the management, preservation and protection of heritage objects as well as the trade therein within South Africa was examined; • Policing agencies at the forefront of combating heritage crime were interviewed and international best practices were identified and compared with that which the SAPS are doing to address crime of this nature. These police agencies are situated in Italy, the United Kingdom, the USA and Germany; • The dynamics of the reported incidents of loss/theft were examined. Several anomalies were identified. Among these are the identification of the typologies of items being targeted and the possible identification of the type of thief perpetrating these crimes. • Through analysis of incidents it was also possible to highlight that the majority of thefts occur during the time when museums and galleries are open and that the items stolen are usually on open display (not affixed to the surface and not behind a barrier of any sort). Through the analysis of the data for legal trade and the theft incidents it was possible to design a Framework depicting the interface between the legal and illegal markets for trade in heritage objects. The research also provides law enforcement with minimum guidelines to ensure that crimes of this nature are addressed more effectively.
D.Litt. et Phil.
Department of Criminology (Police Science)

In recent times, the incidence of single-parent families has increased rapidly with the principle cause being the rising divorce rate. The vast majority of these single-parent families are headed by women and a predominantly common factor in these households is the extent to which they are financially impoverished after divorce. This situation has given rise to the phenomenon known as the feminisation of poverty, where women are seen to make up the majority of the poor. This study examines the many varied factors contributing to this phenomenon and discusses some of the general solutions offered world-wide to address these poverty-stricken households. An assessment is then made of those legal solutions most appropriate for South Africa
Law
LL.M.

Because women are predominantly responsible for childcare, men are the primary income earners. Having acquired the marital assets, on divorce the husband would retain them in a marriage out of community of property. The wife would be left deskilled, financially dependent, with little likelihood of receiving spousal maintenance and with no marital assets. In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment Act introduced a judicial discretion to equitably redistribute marital assets in certain marriages out of community. This dissertation argues that the bases for the limitation of the judicial discretion to women married before a certain date are unsound and that the limitation arguably violates the equality clause of the Constitution.
Law
LL.M.

Summaries in Afrikaans and English
Text in Afrikaans
In hierdie ondersoek is daar navorsing gedoen oor die aard en rol van fisiese beheer in die sakereg met die oog daarop om dit te omskryf en die funksies daarvan te identifiseer. By die verkryging van eiendomsreg word net vereis dat die fisiese beheer wat ten aansien van die saak uitgeoefen word, effektief moet wees. Of 'n saak effektief beheer word al dan nie, word aan die hand van die heersende verkeersopvattings getoets. Hierdie verkeersmaatstawwe wat in die praktyk ten aansien van bepaalde soorte sake uitgekristalliseer het, is buigsaam en veranderlik en dit maak dit moontlik dat die reg by maatskaplike en ekonomiese veranderinge aanpas. Die funksie van fisiese beheer in gevalle van verkryging is altyd publisiteit. In die geval van die beskerming van eiendomsreg word fisiese beheer besonder breed omskryf en daar word slegs verwag dat die persoon van wie die saak teruggeeis word, genoegsame beheer daaroor moet he om dit te kan teruggee. Die funksie van beheer is hier suiwer funksioneel. By die verlies van eiendomsreg speel fisiese beheer nie juis 'n besondere rol nie aangesien die verlies van beheer nie noodwendig op die verlies of beeindiging van eiendomsreg dui nie. Wanneer dit wel ter sprake kom, is die funksie daarvan publisiteit. In die geval van die verkryging van besit en houerskap, dien daarop gelet te word dat die enigste vereiste is dat beheer effektief moet wees en dit word weer eens aan die hand van verkeersmaatstawwe bepaal. Fisiese beheer word strenger omskryf vir verkryging as vir behoud. By die beskerming van besit en houerskap is die enigste vereiste wat gestel word dat beheer vreedsaam en ongestoord moes gewees het. Wanneer beheer oor 'n saak verloor word, gaan dit gewoonlik gepaard met die verlies van besit of houerskap. Die funksie van fisiese beheer is deurgaans publisiteit. Fisiese beheer word redelik streng omskryf vir doeleindes van 'n gewone pand en daar word gewoonlik vereis dat die pandsaak gelewer en gehou moet word vir die vestiging en behoud van 'n pandreg. Die funksies van beheer is hier sekuriteit en publisiteit.
This study examines the nature and role of physical control in the law of property with a view to defining this concept and identifying its functions. The only requirement for the acquisition of ownership is the exercise of effective physical control of the thing in question. Whether or not a thing is physically under control, is determined by the application of legal indicators deriving from use and custom. Such indicators as have cristallised in practice in respect of certain classes of things, are flexible and variable and enable the law to adjust to social and economical changes. The function of physical control in cases of acquisition is always publicity. The definition of physical control in cases of protection of ownership is particularly wide, the only requirement being that the person from whom the thing is reclaimed must have sufficient physical control of it to enable him to return it. The function of control is purely functional. Since loss of control does not necessarily indicate the termination or loss of ownerhip, physical control has no significant part to play in respect of loss, of ownership. Where it does come into play, however, its function will be publicity. In cases of acquisition of possession and holdership it is essential that physical control of the thing is effective and once again this will be determined by application of legal indicators. The definition of physical control is much narrower in respect of acquisition than in respect of retention. The only requisite for the protection of possession and holdership is peaceful and undisturbed physical control. Loss of control of a thing is usually indicative of loss of possession or holdership. Throughout the function of control is publicity. Physical control is quite narrowly defined in cases of ordinary pledge insofar as delivery and retention of the pledge object are usually required for the establishment and continuation of the pledge. In this instance, physical control serves the functions of both publicity and security.
Mercantile Law
LL.D.

In this dissertation, I critically evaluate the VAT treatment of common partnership transactions that are encountered during the life of a partnership. Of great significance, is that at common law a partnership is not regarded as a person, but for VAT purposes it is treated as a separate person. This creates a strong dichotomy between the general legal nature, and the VAT character of a partnership transaction. The partnership and the VAT law dichotomy, is an important theme that runs through most of the thesis. Only once I have established the nature of the transaction for VAT purposes – whether in keeping with or differing from the common law – do I apply the relevant provisions of the VAT Act to determine the VAT implications of the transaction. An important general principle is that what is supplied or acquired by the body of persons who make up the partnership, within the course and scope of its common purpose, is for VAT purposes, supplied or acquired by the partnership as a separate person. I conclude that there are difficulties and uncertainties regarding the application of the provisions of the VAT Act to various partnership transactions. For the sake of certainty and simplicity, I propose amendments to the current provisions that are relevant to partnership transactions, and also propose additional provisions. The proposed amendments seek to align with the purpose of the VAT Act and the principles upon which it is based, and also to adhere to internationally accepted principles for a sound VAT system. I also pinpoint those aspects of the VAT Act that can be clarified by the SARS in an interpretation statement. I further identify issues that require more research, eg issues arising from a partnership’s participation in cross-border trade.
Mercantile Law
LL. D.