Maintaining the status quo? : an analysis of the reformative potential of section 25
- Authors: Abdullah, Imraan Alam Khan
- Date: 2017
- Subjects: Land reform - Law and legislation - South Africa , Land tenure - Government policy - South Africa , Right of property - South Africa , Restitution - South Africa , Constitutional law - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236627 , uj:24227
- Description: LL.M. (Human Rights Law) , Abstract: Land reform has become a hot topic recently. In particular the slow pace at which it is being pursued has prompted calls for an amendment to the property clause. This is due to the rising sentiment that section 25 is a guarantor of the status quo and not a tool for reform. My dissertation examines whether this sentiment holds water by analysing the reformative potential of the property clause. In doing so the constitutional matrix, a single system of law, and a purposive interpretation approach are all considered in detail as elements that illustrate the property clause is a tool for reform. The structure of the property clause is also considered with particular attention given to one of the pillars of land reform, namely land restitution. The conclusion drawn is that the property clause is a tool for reform and not a guarantor of the status quo and that the courts have understood this clearly. Conversely, what has been driving the status quo is in fact political impotency when it comes to pursuing the land reform agenda. In this regard the Restitution of Land Rights Amendment Act is discussed in light of a recent Constitutional Court case. Market-value compensation for expropriation is also an impediment in many cases, and in this regard the recent Msiza judgment is briefly discussed as being the progressive method for calculating the compensation. Finally, the conclusion is that calls for an amendment to the property clause are premature, as the full potential of section 25 to accommodate land reform has not yet been realised.
- Full Text:
- Authors: Abdullah, Imraan Alam Khan
- Date: 2017
- Subjects: Land reform - Law and legislation - South Africa , Land tenure - Government policy - South Africa , Right of property - South Africa , Restitution - South Africa , Constitutional law - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236627 , uj:24227
- Description: LL.M. (Human Rights Law) , Abstract: Land reform has become a hot topic recently. In particular the slow pace at which it is being pursued has prompted calls for an amendment to the property clause. This is due to the rising sentiment that section 25 is a guarantor of the status quo and not a tool for reform. My dissertation examines whether this sentiment holds water by analysing the reformative potential of the property clause. In doing so the constitutional matrix, a single system of law, and a purposive interpretation approach are all considered in detail as elements that illustrate the property clause is a tool for reform. The structure of the property clause is also considered with particular attention given to one of the pillars of land reform, namely land restitution. The conclusion drawn is that the property clause is a tool for reform and not a guarantor of the status quo and that the courts have understood this clearly. Conversely, what has been driving the status quo is in fact political impotency when it comes to pursuing the land reform agenda. In this regard the Restitution of Land Rights Amendment Act is discussed in light of a recent Constitutional Court case. Market-value compensation for expropriation is also an impediment in many cases, and in this regard the recent Msiza judgment is briefly discussed as being the progressive method for calculating the compensation. Finally, the conclusion is that calls for an amendment to the property clause are premature, as the full potential of section 25 to accommodate land reform has not yet been realised.
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Realising land reform through expropriation : an analysis of the just and equitable compensation requirement
- Authors: Mvunyiswa, Thamsanqa
- Date: 2021
- Subjects: Land reform - South Africa , Equity - South Africa , Constitutional law - South Africa , Right of property - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/475496 , uj:42897
- Description: Abstract: South Africa’s history is characterised by injustice, from the dispossession of land belonging to the indigenous inhabitants during the colonial era, to the discriminatory laws under the apartheid government. Nowhere is this injustice more glaring than in the marginalisation of African people in relation to access to land specifically, and the right to property in general.1 The majority of people in South Africa, black people in the main, still have either no or insufficient access to land, despite being the majority and despite the promise of reform, as espoused in the Constitution of the Republic of South Africa, 1996 (“the constitution”). This is the backdrop to the current debate about land reform and the amendment of section 25 of the constitution (“the property clause”), namely whether expropriation without compensation (“EWC”) should be allowed to fast-track land reform. This debate stems from the premise that paying just and equitable compensation for expropriation is frustrating the realisation of land reform and that abolishing this requirement is the answer to this challenge... , LL.M. (Human Rights Law)
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- Authors: Mvunyiswa, Thamsanqa
- Date: 2021
- Subjects: Land reform - South Africa , Equity - South Africa , Constitutional law - South Africa , Right of property - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/475496 , uj:42897
- Description: Abstract: South Africa’s history is characterised by injustice, from the dispossession of land belonging to the indigenous inhabitants during the colonial era, to the discriminatory laws under the apartheid government. Nowhere is this injustice more glaring than in the marginalisation of African people in relation to access to land specifically, and the right to property in general.1 The majority of people in South Africa, black people in the main, still have either no or insufficient access to land, despite being the majority and despite the promise of reform, as espoused in the Constitution of the Republic of South Africa, 1996 (“the constitution”). This is the backdrop to the current debate about land reform and the amendment of section 25 of the constitution (“the property clause”), namely whether expropriation without compensation (“EWC”) should be allowed to fast-track land reform. This debate stems from the premise that paying just and equitable compensation for expropriation is frustrating the realisation of land reform and that abolishing this requirement is the answer to this challenge... , LL.M. (Human Rights Law)
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Verkryging van eiendomsreg deur 'n versekeraar in geval van 'n versekerde saak
- Authors: Schlemmer, Engela Catharina
- Date: 2015-08-17
- Subjects: Right of property - South Africa , Insurance law - South Africa , Transfer (Law) - South Africa
- Type: Thesis
- Identifier: uj:13865 , http://hdl.handle.net/10210/14199
- Description: LL.M. , Please refer to full text to view abstract
- Full Text:
- Authors: Schlemmer, Engela Catharina
- Date: 2015-08-17
- Subjects: Right of property - South Africa , Insurance law - South Africa , Transfer (Law) - South Africa
- Type: Thesis
- Identifier: uj:13865 , http://hdl.handle.net/10210/14199
- Description: LL.M. , Please refer to full text to view abstract
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