Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Author "Cloete, Clireesh Terry"

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    The consequences of a successful estoppel defence : a constitutional analysis
    (Stellenbosch : Stellenbosch University, 2021-03) Cloete, Clireesh Terry; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The consequences attributed to estoppel at common law ordinarily entail the suspension of the owner’s rei vindicatio and hedged possession in favour of the successful estoppel raiser. However, remarks made in the Supreme Court of Appeal judgment, Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA), have caused uncertainty in this regard. The uncertainty concerns the question whether the traditional position of suspension and hedged possession subsequent to the case now result in compulsory loss and acquisition of ownership. In light of this uncertainty, this dissertation considers and analyses the consequences ascribed to the situation where a bona fide purchaser successfully raised estoppel against the rei vindicatio, and the question whether development in this regard could be justified based on comparative, policy and constitutional analysis. The dissertation revealed that if the judgment of Oriental Products indeed implies that the estoppel defence automatically results in ownership acquisition, the most suitable category for the acquisition from a doctrinal perspective would be original, rather than derivative acquisition of ownership. Instead of maintaining acquisition of ownership as a consequence of estoppel in its defence form, it is argued that the development of a completely new self-standing mode of original acquisition based on the requirements of estoppel is supported by comparative, policy and constitutional considerations. From a comparative perspective, constructs like estoppel found in foreign jurisdictions give rise to the same issues that estoppel in South African law does, especially when considering whether ownership acquisition via the defence is possible. This finding exposed that it may not be wise to ascribe ownership acquisition consequences to estoppel in its defence form. Strong policy reasons that prefer and justify the development of a new and self-standing mode of original acquisition of ownership in the context of estoppel, as opposed to the uncertain traditional position were found. Significantly, the study showed that this development might be mandated given the current uncertain traditional position being inconsistent with section 25 of the Constitution. Development of a new self-standing mode of acquisition of ownership that complies with the requirements of estoppel would not only pass constitutional muster but would also allow for the old debate around the consequences of a successful estoppel defence to finally be settled.