Masters Degrees (Private Law)
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Browsing Masters Degrees (Private Law) by browse.metadata.advisor "Pienaar, Juanita M."
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- ItemA comparative study of black rural women's tenure security in South Africa and Namibia(Stellenbosch : Stellenbosch University, 2012-12) Kamkuemah, Anna Ndaadhomagano; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The South African land question presents complex legal and social challenges. The legal aspects of land are inextricably linked to other socio-economic aspects, such as access to housing, healthcare, water and social security. The Constitution provides for land reform in the property clause - section 25. This clause, while seeking to redress the colonial land dispossessions, by means of a tripartite land reform programme, also protects the property rights of all. The different legs of the land reform programme are redistribution, which is aimed at enabling citizens to access land on an equitable basis; restitution, which sets out to restore property rights or grant equitable redress to those dispossessed of land as a result of past racially discriminatory laws or practices and finally tenure reform. Tenure reform is premised on transforming the landholding system of those with legally insecure tenure as a result of past racially discriminatory laws or practices or granting comparable redress. The primary focus of this thesis is on tenure security for black rural women in South Africa, while using the Namibian experience with regard of the same group as a comparison. Historically, before colonialism, landholding was governed by the customary law of the various tribes in South Africa. This landholding system underwent extensive change through the colonial era that ultimately led to a fragmented and disproportionate distribution of land based on race, with insecure land rights particularly in rural areas, where women are the majority. With the dawn of the Constitutional era, South Africa embarked upon a social justice project, based on a supreme Constitution, embodying human dignity, equality, non-racialism, accountability and the rule of law. Land reform forms part of the social project and is governed by the Constitution and influenced by both the civil and customary law. With the South African tenure context, policy documents, legislation and case law will be analysed. In this process the role of the stakeholders and other related factors, for example customary practices are also considered. The analysis indicates that case law has played a significant part in addressing women’s plight with regard to equality, tenure reform and abolishing suppressive legislative provisions and practices. It is furthermore clear that the different categories of women are affected differently by the overarching tenure and other related measures. For a legal comparative study, Namibia was chosen for the following reasons: (a) both South Africa and Namibia have a shared colonial and apartheid background; (b) both countries have a Constitutional foundation incorporating human rights and equality; and (c) both countries have embarked on land reform programmes. However, contrary to the South African position, both the Namibian Constitution and its National Land Policy are more gender-specific. Tenure reform is an on-going process in Namibia in terms of which specific categories of women have benefitted lately. To that end the gender inclined approach may be of specific value for the South African situation, in general, but in particular concerning black rural women. Consequently, particular recommendations, linked to the specific categories of women, are finally provided for the South African position, in light of the Namibian experience.
- ItemEfficacy of the Spatial and Land Use Management Act in the promotion of spatial justice in an urban land reform context(Stellenbosch : Stellenbosch University, 2020-03) Swanepoel, Sonja; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The spatial legacy of colonialism and apartheid is clearly still intact. Problems of poverty and marginalisation are especially prevalent in informal settlements in South Africa, which showcase the immense spatial disparity so in need of redress. Due to a lack of intergovernmental cooperation as well as insufficient investment in housing and infrastructure, the inherent inequalities in urban areas are being reproduced. Other issues relate to a lack of inclusion, specifically as it relates to participation in decision-making. Although all racially-based land measures were already repealed in 1991 and even though apartheid had officially ended by 1994, bringing about major changes in policy and legislation, with a new corresponding focus on the protection of human rights, specific attention was not given to the deep-rooted problems related to spatial patterns. For these reasons it is necessary to evaluate whether existing policies and statutes aimed at promoting urban spatial transformation and spatial justice are effective. In this regard, the focus shifts to the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”), a planning framework Act. The main research question is accordingly whether SPLUMA, in its current form, is able to promote spatial justice in an urban land reform context, specifically in informal settlements, with reference to sections 25(5) and 25(6) of the Constitution of the Republic of South Africa, 1996 (the “Constitution”), pertaining to the promotion of access to land and improving tenure security, respectively. In this study it was found that SPLUMA does indeed, although to a very limited extent, promote spatial justice in the context of the particular constitutional imperatives contained in sections 25(5) and 25(6) of the Constitution. Essentially, SPLUMA is a planning tool and not inherently aimed at promoting land reform. Yet, because of the very specific touching points between SPLUMA and sections 25(5) and 25(6) of the Constitution, with some adjustment and with more emphasis on particular tools in SPLUMA, the efficacy of SPLUMA in its endeavour to promote spatial justice can and must be improved.
- ItemUbuntu in a land reform context : opportunities and challenges(Stellenbosch : Stellenbosch University, 2021-03) Dyantyi, Inga; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.Thesis (LLM)--Stellenbosch University, 2021.