Browsing 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.
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    A critical analysis of the approach of the courts in the application of eviction remedies in the pre-constitutional and constitutional context
    (Stellenbosch : Stellenbosch University, 2016-12) Cloete, Clireesh Terry; Boggenpoel, Zsa-Zsa; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law
    ENGLISH ABSTRACT : In the pre-constitutional era courts had a very specific approach to eviction remedies. This approach was the result of legal doctrine that regulated the concept of ownership, eviction remedies and standard practices of presiding officers as entrenched in rules of interpretation and procedural rules. The advent of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) transformed the eviction landscape by way of section 26(3) of the Constitution and the subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). After the first Constitutional Court judgment Port Elizabeth Municipality v Various Occupiers (2005 (1) SA 217 (CC) it became apparent that the PIE not only replaced the pre-constitutional eviction remedies but in fact also required that the deep-level assumptions of a landowner’s right to evict and the standard practices associated with the courts’ role in eviction cases were also revolutionised. The pivotal consideration of this study, in light of these developments of eviction law brought about by the constitutional dawn, is whether the courts are indeed approaching and applying PIE in line with their mandate. This is critical as a superficial shift will only frustrate the transformative thrust of the Constitution in the context of eviction. The study of the courts’ approach to eviction remedies in the pre-constitutional and constitutional context has shown that section 26(3) and PIE have indeed transformed the eviction landscape on a theoretical basis. In this regard, the courts’ approach to eviction remedies has changed from conservative, formalistic and passive in the pre-constitutional era to context-sensitive, flexible and proactive. However, some courts, especially the lower courts, are still failing to apply PIE as mandated. This is due to the continued pre-constitutional deep-level assumptions of the strength of the landowner’s right to evict, combined with procedural practices that form part of their pre-constitutional legal culture. Interestingly, the specific focus on landowners in this study indicated that this failure on the part of the court is surprisingly problematic for landowners.