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Tradition on Trial: A Critical Analysis of the Civil-Law Tradition in South African Property Law

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... From a civil legal perspective, ownership in relation to property is equated with dominium [57], i.e. the complete power to use, enjoy, and dispose of property unless prohibited by law [58]. In Anglo-American legal systems, ownership is depicted as a bundle of rights, "envisaged as a bundle of sticks with each stick representing a right" [43]. ...
... The mutually reinforcing, democratically embedded interactions between the two reflect accountability, transparency, and mutually beneficial collaboration (see e.g. [58]). ...
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Human rights principles form the foundation for the move towards responsible land administration. They are embedded in such international treatises as the Sustainable Development Goals, New Urban Agenda, and Voluntary Guidelines on the Responsible Governance of Tenure, among others. These treatises provide the backdrop to the development of land policies and administration systems that seek to secure land tenure and land rights for all through adherence to human rights principles such as non-discrimination, equity and justice, gender responsiveness, transparency and accountability. Yet the human rights tradition is built on Western values and biases, and there is some contention as to the universal acceptance of this. In discussing land rights in Africa, assumptions about the universality of human rights should be weighed against such contentions if land reform programmes are to sustainably succeed. In this chapter, the arguments around human rights are presented in the context of African land reform, and a model of democratic land governance is proposed.
... From these legal traditions, South African property law inherited several features. The lasting impression, however, came from the particular reception of Roman-Dutch law principles of property law ( Van der Walt 1995d;Zimmerman 1996, 28). ...
Chapter
Despite different historical influences, the social norm as articulated by Duguit found its way into the South African legal system and is now a permanent feature of South African property law. The reason for this can be found in the constitutional reform of the late twentieth century in South Africa. The constitutional property clause protects private holdings while simultaneously imposes obligations on the state for ensuring transformation of the historically unjust system of resource distribution. This essay questions the applicability of the norm in a jurisdiction where more than half of the constituents are formally classified as poor. The essay uses the student protests of recent years to contextualise the need to rethink the way property law can serve the South African society. The argument is for development of a property law which allows the traumatised population of South Africa to combine its distinctive capabilities of humanity (as expressed in the Constitutional norm of Ubuntu) and entrepeneurship to reach into the aspects of modern living in South Africa where the “evil triplets” of poverty, inequality and unemployment can be addressed. The guidance for such development is already locked into the Constitution. However, in considering elements of the compassionate and entrepeneurial property law system already present in the property law system, it is clear that a partnership between an engaged citizenry and an enabling state is needed.
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I consider to what extent, if at all, rights - or to take it wider, law - can contribute or even respond to what is referred to as the 'current crisis' in higher education. To what extent does rights discourse still enable radical political claims that could engage with the complexity of the moment and support a politics of resistance? I recall arguments on the limits of law, in particular the inability of law to be self-reflexive, and also some critical responses to rights as such. Could these critical responses disclose possibilities for a radically different conception of right, of a 'Right' - particularly the Right to the university - that emerges from a place of anxiety, disruption and 'unselfing' rather than preservation? What could be at stake in thinking about a 'Right' to the university against the background of the notion of the Right to the city? The potential relevance of the Right to the city, linked to the notion of 'inhabitance', is that it challenges the modern, technical and functional notion of 'habitat'. Habitat is devoid of any notion of politics, most pertinently political resistance. A contemplation of a Right to the university will have to have at its core the notion of 'inhabitance' that will resonate with Lefebvre's notion of "lived space".
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In January 1672, nearly twenty years after the Dutch East India Company had established an outpost at Africa's Cape of Good Hope, a case was adjudicated by the rudimentary local judicial body, the Council of Justice, the significance of which was evident even then. The facts were simple. Members of the indigenous population were accused of having robbed and assaulted European servants of the Company. The legal question before the Council, however, was an intricate one. Did it have jurisdiction over the accused and could it apply to them the same law as would have been applied if the roles of perpetrator and victim had been reversed? The prosecutor successfully urged an affirmative answer. Citingthe Roman Emperor Justinian's Corpus Iuris Civilis , he argued that: “Since the law of nature is implanted in all reasonable creatures, the Hottentots cannot be excluded therefrom. They are consequently subject to the law of nature and therefore also the law of nations …”
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Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
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Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights. We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either. Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.
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There are increasing calls for academics to abandon "traditional" disciplinary research and to engage in multi-, inter- and transdisciplinary research. The argument is that this will serve to break down working in "silos" and somehow lead to more innovative research. This article examines the concepts of multidisciplinary, interdisciplinary and transdisciplinary research to determine if this kind of research is possible in legal research. The basic premise is that science is unified by the need for some kind of justification, arguably in the form of falsifiability of theories. But science is also divided into natural, social and human sciences and this article argues that this division is based on methodological differences. Whilst the natural sciences employ a mostly empiricist methodology and the human sciences employ a mostly rationalist methodology, the social sciences seem to employ a mixture of the two methodologies. Law is a human science and moreover a professional discipline. Some argue that this professional nature militates against multi-, inter- and transdisciplinary (MIT) research as it requires law students to be taught how to "think like a lawyer". The article concludes that most law researchers engage in multidisciplinary research on a regular basis, but that interdisciplinary research is highly unlikely and transdisciplinary research almost never happens.
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Since de Soto introduced the dead capital concept in 1989, he remained a controversial figure. There are those who find his ideas fascinating. They see the transformation of housing and business regimes in developing countries from informal to formal as a potentially powerful mechanism to turn large amounts of latent capital into live, working capital. Others are sceptical, questioning his premises on practical and ideological grounds. Studies have shown that the legalisation of properties in developing countries is no silver bullet solution to future economic development. Outcomes have often fallen short of claims made in the de Soto hypothesis. This paper attempts to demonstrate how the same arguments are being repeated in these debates while potentially controversial issues have managed to remain under the radar of commentators on both sides of the divide. The paper then highlights the vitality of market forces in informal and mixed formal–informal markets in cities in South Africa. Referring to different forms of transformation in the residential sector in cities in South Africa, the study indicates that some forms of informal urban development do indeed represent dead capital while others, which should be regarded as dead capital in terms of the de Soto hypothesis, are very much alive. The underlying thesis of the paper is that the vibrancy of current irregular market activities in disadvantaged communities is indicative of the potential strength of market forces there.
Article
Full-text available
Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
Hernando De Soto's global best-seller, The Mystery of Capital, has transformed the previously obscure topic of land titling into an apparent cure for the world's ills. His achievement has been to focus attention on the relationship between sustainable capitalist economic development and the need of the Third World poor for secure land tenure. He challenges lawyers (and other professionals concerned with land management) to recognise the centrality of land to issues of social justice and development. The article links De Soto's call for integrated property systems with current cross-disciplinary academic discourses on urban law and development and post-colonialism. Specific themes (illustrated with country examples) are cadastral reform (Southern Africa), adverse possession (Israel/Palestine) and usucapio (Brazil), the relationship of customary and individual land tenure (Botswana), and land assembly and infrastructure provision for urban development (land readjustment in Japan and India).
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This article examines an apparent paradox in comparative constitutional law. Property rights are not treated as a fundamental right in American constitutional law; they are, however, under the Basic Law (i.e., constitution) of Germany, a social-welfare state that otherwise gives less weight to property. The article uses this apparent paradox as a vehicle for considering the different reasons why constitutions protect property. It explains the difference between the German and American constitutional treatment of property on the basis of the quite different approaches taken in the two systems to the purposes of constitutional protection of property.
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Inleidinge tot de Hollandsche Rechts-geleerdheid 1619-1621. The most authoritative modern edition is that of F Dovring To a large degree Grotius already established the framework of his methodology in the earlier De Iure Praedae 1604-1605
  • H F W D Fischer
  • E Meijers
Potgieter and Visser op cit note 33 at 35
  • Neethling
Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism
  • W Joseph
  • Singer
33.1; 1952 op cit note 18 at 151; compare A J van der Walt ‘Der Eigentumsbegriff Das Römisch-Holländische Recht: Fortschritte des Zivilrechts im 17
  • Ii Inleidinge
See A J van der Walt ‘Ownership and Personal Freedom: Subjectivism in Bernhard Windscheid's Theory of Ownership
  • Pandektenrechts Lehrbuch
The Values and Principles Underlying the 1993 Constitution’ (1994) 9 SA Public Law 233
  • H Botha
Property as a Constitutional Right 38 Wash & Lee LR 1097 at 1112. Compare Michelman ‘Possession vs Distribution in the Constitutional Idea of Property’ (1987) 72 Iowa LR 1319, as well as Singer and Beermann op cit note 130
  • F See
  • Michelman
New Patterns of Landownership: The Transformation of the Concept of Landownership as Plena in Re Potestas
  • D V Cowen