Research Articles (Public Law)

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Browsing Research Articles (Public Law) by Author "Boggenpoel, Z. T."

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    The ambit of the discretion of courts in the case of encroachments : Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property
    (Juta Law, 2015-01) Boggenpoel, Z. T.
    The purpose of this note is to analyse a recent judgment of the South Gauteng High Court in Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property (unreported GSJ judgment, case no 41882/12, 10 December 2013). Although this is a fairly short judgment it raises important questions regarding the law pertaining to encroachments. As such, it warrants a discussion of the ambit of the courts’ discretion where encroachments are concerned. The facts of the case can be summarised as follows. The applicant and respondent owned neighbouring commercial properties. The applicant owned plot 989, which measures 5989 square metres, while the respondent owned plot 990, which measures roughly 1821 hectares. The applicant had initially owned both properties and sold off plot 990 to the respondent on 31 July 2006. At the time that the transfer took place, both parties were unaware that the existing fence between the two plots was not situated on the cadastral boundary between the properties (para 4). The inaccurate placing of the fence resulted in a triangular piece of land (measuring some 2271 square metres), an incomplete building (approximately 703 square metres in size) and a guard house structure being incorrectly incorporated as part of the applicant’s land, although they actually belonged to the respondent (para 2). When the applicant became aware of the encroachment, it approached the respondent to acquire the encroachment area. The applicant offered to pay an amount of R4 410 721.00 plus a solatium of R100 000 for the encroachment to remain in place in perpetuity. However, the negotiations failed and the parties approached the Gauteng South High Court for a decision on the matter.
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    Applying the mandament van spolie in the case of incorporeals : two recent examples from case law
    (Juta Law, 2015-01) Boggenpoel, Z. T.
    The mandament van spolie is a remedy available in South African law to protect possession of property. The remedy is aimed at ensuring restoration of possession ante omnia in instances of unlawful dispossession. It is not specifically aimed at protecting rights with regard to property; therefore it is generally accepted that courts should disregard the merits of the dispute when deciding whether the remedy should be granted. Considerations other than the remedy's two requirements are therefore irrelevant in the decision of whether the mandament van spolie is applicable. There are two requirements that need to be complied with in order for one to be successful with the mandament van spolie. Firstly, the spoliatus - the person who was dispossessed - must prove peaceful and undisturbed possession of property. In the case of incorporeals - where physical possession is not possible - the law recognises quasi-possession to fulfil the first requirement of the remedy. Van der Merwe explains that the spoliatus does not have to prove that he/she actually had a right to possess in terms of the maxim ante omnia restituendus est, but simply that the right was actually possessed and that unlawful dispossession took place.
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    Intangible constitutional property : a comparative analysis
    (Juta and Company, 2017-12) Swanepoel, Jan-Harm; Boggenpoel, Z. T.
    This article investigates how the question of recognising intangible interests as constitutional property is approached in the constitutional property law regimes of Moldova, Germany, the European Court of Human Rights (“ECHR”), the United States of America (“US”) and South Africa. It is also investigated whether Moldova and South Africa, being examples of relatively young constitutional democracies, follow an approach to the recognition of intangible interests as constitutional property that is perhaps similar to that of the established constitutional democracies of Germany and the US. This article concludes that each of the jurisdictions investigated do allow for the recognition of intangible interests as constitutional property, despite their diverging approaches to this question. The Constitutional Court of Moldova follows the approach of the ECHR regarding the recognition of intangible interests as constitutional property. The Constitutional Court of South Africa uses an approach that is doctrinally similar to that of German constitutional property law, though German law is not specifically followed.
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    Submission to Parliament on the review of section 25 of the Constitution of the Republic of South Africa, 1996
    (2019) Slade, B. V.; Pienaar, J. M.; Boggenpoel, Z. T.; Kotze, T.
    On the 27th of February 2018, the National Assembly adopted a motion to review section 25 and other relevant provisions of the Constitution of the Republic of South Africa, 1996, to permit the state to expropriate land in the public interest without paying compensation. The Constitutional Review Committee, mandated by the National Assembly, has invited written submissions on this matter. We hereby submit our submission on the motion to review section 25 and other relevant provisions. We are also prepared to make oral representation if the need arises.
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    The discretion of courts in encroachment disputes
    (Juta, 2012) Boggenpoel, Z. T.
    The main focus of this note is Phillips v South African National Parks Board (4035/07) [2010] ZAECGHC 27 (22 April 2010) SAFLII (accessed 13-06-2012), which was a case dealing with the erection of a fence that encroached on the applicant’s property. The note explores the current way that courts deal with encroachment disputes in light of the Phillips judgment. This judgment correctly confirms that courts assume the existence of a wide discretion to replace injunctive relief (or mandatory interdicts) with compensatory awards; it illustrates how the discretion will be exercised in order to reach a just and equitable outcome and lays open the possible constitutional implications that may be triggered if encroachments are not ordered to be removed. What is problematic in this case is that the court considered the possibility of ordering transfer of the land to the affected landowner. If a court exercises its discretion in favour of leaving the encroachment in place and additionally orders that the encroached-upon land be transferred to the encroacher, this court order sanctions an involuntary transfer of the affected property. The loss of property or property rights needs to comply with section 25 of the Constitution of the Republic of South Africa, 1996. The crucial concern in this case is whether the common law actually authorises such a court order that results in the deprivation. However, the possible constitutional problem that may have been created by an order for transfer of the affected land was avoided because the court ordered in terms of its discretion that the encroachment be removed. It should be noted, though, that the court’s remarks concerning the transfer order were made purely on the basis of the balance of prejudice and not on any constitutional principle. To my mind, the possibility of constitutional infringement may very well have arisen if the balance of prejudice favoured the encroacher and therefore the issue needs to be considered.