Potchefstroom Electronic Law Journal最新文献

{"title":"The Intricacies of Land Reform in Namibia: An Overview of the Land Question in Namibia 33 Years After Independence","authors":"K. Mundia, Rebeka Haimbili","doi":"10.17159/1727-3781/2023/v26i0a14715","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14715","url":null,"abstract":"It is trite that at independence in 1990 Namibia inherited a skewed land distribution system in favour of a white minority, which necessitated the newly elected government to take drastic steps to redress the historical injustices pertaining to land ownership. The steps taken to address the land issue were birthed at the first National Conference on Land in 1991. This article investigates those measures and their effectiveness or lack thereof in satisfactorily solving the land question. One of those measures is the Willing-Seller Willing-Buyer Policy (WSWB) which, together with the legislative framework on land has failed dismally in ensuring the equitable distribution of land and realising the transformative aims of the Constitution. The article identifies various challenges Namibia faces in addressing the land issue, including the difficulty in implementing a mandatory policy of expropriation of private lands without compensation in a capitalist society. It further criticises the concept of national reconciliation adopted at the first National Land Conference in that it may have deprived the country of an opportunity to holistically address the skewed land distribution system once and for all. The article finds that the major constraints to meaningful land reform in Namibia are contained in the legislative framework and policies on land, which emanate from pre-independence provisions contained in the 1982 Constitutional Principles. The article also finds that due to those inherent constraints in the legislative framework, it is impossible to realise the transformative aims of the Constitution which include, equality in land distribution. There is therefore a need to rethink land reform in Namibia. In this regard, it is imperative to infuse the concept of restorative justice in the debate of land and to compel private landowners to participate in the process of land reform.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"125 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Access to Electricity for ESTA Occupiers: TM Sibanyoni and Sibanyoni Family v Van Der Merwe and Any Other Person in Charge of Farm 177, Vaalbank Portion 13 Hendrina, Mpumalanga (LCC 119/2020) [2021] ZALCC 33 (7 September 2021)","authors":"Lerato Rudolph Ngwenyama","doi":"10.17159/1727-3781/2023/v26i0a15453","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15453","url":null,"abstract":"This case note highlights the importance of access to electricity for occupiers under the Extension of Security of Tenure Act 62 of 1997 (hereafter ESTA). More importantly, the case note questions whose responsibility it is to provide ESTA occupiers with access to electricity on farmland. Moreover, it will comment on whether the Land Claims Court (hereafter LCC) got the decision right (or not). Furthermore, it provides a comment on whether the right to human dignity in section 5 of ESTA requires a dwelling on rural or peri-urban land to have access to electricity. It will also comment on whether the Sibanyoni judgment was progressive (or not) and why. The conclusion is that access to electricity is essential in modern life to enjoy adequate living conditions. A dwelling without electricity deprives an ESTA occupier of benefits such as utilising electric equipment, which is necessary for daily living. ESTA occupiers are unable to use stoves, which are crucial and safe for cooking. They are also not able to have lights, which are useful to deter criminality in their dwellings. Very importantly, ESTA occupiers' human dignity would be violated or denied to them by refusing to install electricity in their dwellings. The state therefore has a positive obligation to provide ESTA occupiers with access to electricity. Private landowners have only a negative obligation to refrain from impairing ESTA occupiers' right to access to electricity by not unreasonably refusing consent to have electricity installed by the state. The Sibanyoni judgment was progressive, among other reasons because it permitted an ESTA occupier to have electricity installed on his dwelling without the consent of the private landowner.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"14 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prison Personnel in the Colony of Natal from circa 1850 to the Prison Reform Commission of 1905-1906","authors":"Paul Swanepoel","doi":"10.17159/1727-3781/2023/v26i0a15896","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15896","url":null,"abstract":"White colonial ideology was produced as a result of the fractured nature of the relations – social, political and economic – between black and white in the colony of Natal. Apart from the racial tensions between warders and prisoners of different races, tensions within the colonial edifice itself – particularly between police officers and gaol officials – reveal deep divisions within the colonial state. The article is primarily based on material housed in the Pietermaritzburg Archives Repository; some quotations from The Black Peril by an imprisoned journalist, George Webb Hardy, have also been included.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"12 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Legal Framework Governing Traditional Leaders' Role in Land Use Planning in South Africa","authors":"Elmien (WJ) du Plessis","doi":"10.17159/1727-3781/2023/v26i0a16564","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16564","url":null,"abstract":"This article investigates the legal framework governing the role of traditional leaders in land use planning, through a historical gaze at the nature and authority of traditional leadership in South Africa. It is through this brief historical discussion that the influence of colonial and apartheid concepts of traditional leadership, as concretised in legislation, comes to the fore. This then creates a basis from which the Traditional and Khoisan Leadership Act 3 of 2019 and the Spatial Planning and Land Use Management Act 16 of 2013 are explored.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"152 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Laudation for Professor Willemien du Plessis (BJur LLB LLD MA (Environmental Management))","authors":"Nicola Smit","doi":"10.17159/1727-3781/2023/v26i0a17054","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17054","url":null,"abstract":"Laudation for Professor Willemien du Plessis","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"36 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"South African Environmental Law and Political Accountability: Local Councils in the Spotlight","authors":"Nonhlanhla Ngcobo","doi":"10.17159/1727-3781/2023/v26i0a17260","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17260","url":null,"abstract":"The world is facing an environmental crisis threatening human and non-human existence. Various actors are responding to this crisis, including politicians, international non-governmental organisations, transnational organisations and scientific communities. Municipalities are governing entities in cities and are deemed critical actors to help respond at a sub-national level to the global environmental crisis. In terms of sections 151(2) and 156(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution) municipal councils have executive and legislative authority over local environmental governance (LEG) matters listed in Schedules 4B and 5B of the Constitution, thus making municipal councils the highest South African authority with legal and political powers in local communities. This article uses the constitutions, policies, and manifestos of political parties active in the local government sphere to ascertain the role of political parties in (local) environmental governance. The aim of this inquiry is to investigate how political parties in South Africa conceive of their accountability in the environmental governance context. The assumption is that unless councillors are politically inclined and are expressly expected at party level to pursue ecologically sustainable development, municipalities will not be able to fulfill their role in the urgently needed transition. The article finds that municipal councils are accountable for environmental governance and should improve on thisnresponsibility. The accountability should start with parties making explicit environmental commitments and holding their councillors accountable for failing to fulfil them.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"39 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Professor Willemien du Plessis: a Personal Reflection","authors":"Paul J Du Plessis","doi":"10.17159/1727-3781/2022/v25i0a16925","DOIUrl":"https://doi.org/10.17159/1727-3781/2022/v25i0a16925","url":null,"abstract":"A personal dedication to Prof Willemien du Plessis.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"15 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Review of the Enforcement of Sectional Title Rules: Administrative Action or Common-Law Review? Trustees for the time being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd","authors":"Gerrit Pienaar","doi":"10.17159/1727-3781/2023/v26i0a15594","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15594","url":null,"abstract":"In Bae Estates and Escapes (Pty) Ltd v Trustees for the time being of the Legacy Body Corporate 2020 4 SA 514 (WCC) the Supreme Court of Appeal (SCA) considered a resolution by the trustees of a sectional title scheme that an estate agent Bae Estates and Escapes was not allowed to enter or exercise any economic activities in the scheme. The resolution was based on a conduct rule which enabled the trustees to disallow specific estate agents to sub-let units in the scheme on a short-term basis. The Western Cape Division of the High Court found that the resolution was unlawful, wrong, procedurally unfair and arbitrary and therefore reviewable. The High Court considered two requirements of the definition of \"administrative action\" in the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and held that the resolution of the trustees constituted administrative action in terms of PAJA and was as such reviewable under PAJA. On appeal the Supreme Court of Appeal considered whether the trustees' conduct should be considered an administrative act reviewable under PAJA or alternatively be reviewed under the common law in terms of section 33 of the Constitution. After analysing the three requirements of administrative action to determine whether the conduct of the trustees had to be determined under PAJA, the SCA held that the conduct of the trustees did not fulfil any of these requirements and reviewed their conduct under the common law. In this case note the three requirements for administrative action are discussed in view of the special nature of the body corporate and the rules of a sectional title scheme. The body corporate is a statutory juristic person that is automatically established on the opening of a sectional title register and therefore not consensual in nature, like common law clubs, companies or retirement schemes. Furthermore, its rules are regarded as the product of the quasi-legislative function of a statutory body, which rules must be approved by the Ombud Service for Community Schemes before the opening of the sectional title register. Although the outcome of the judgment would have been the same, the juridical basis would have been more accurate if the SCA had taken into consideration the special nature of a sectional title scheme, which brings the conduct of the trustees within the ambit of administrative action under PAJA.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"94 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139246113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Laudatio in Honour of Professor Willemien du Plessis","authors":"Tiisetso John Rantlo","doi":"10.17159/1727-3781/2023/v26i0a16826","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16826","url":null,"abstract":"Tribute to Professor Willemien du Plessis.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"39 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139246177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"No Country for Old Women: A Critique of Grobler v Phillips 2023 1 SA 321 (CC)","authors":"Allison Geduld","doi":"10.17159/1727-3781/2023/v26i0a16342","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16342","url":null,"abstract":"Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"553 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}