Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Subject "Access rights -- South Africa"

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    A constitutional analysis of access rights that limit landowners' right to exclude
    (Stellenbosch : Stellenbosch University, 2015-12) Dhliwayo, Priviledge; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Department of Public Law
    ENGLISH ABSTRACT : The right to exclude is portrayed either in a strong-absolute sense or a qualified sense. According to the South African doctrinal notion of ownership, ownership and the right to exclude are exercised and protected insofar as the law permits. The law sometimes grants non-owners access rights to land without the landowner’s prior permission or consent and this places substantial limitations on the right to exclude. The research problem addressed in this dissertation pivots on the relationship between exclusion and access rights. It provides an overview of the theoretical and doctrinal perspectives on the existence of limitations in the form of access rights, deriving from different sources and for different reasons, and considers possible justifications for the limitations. This dissertation shows that there is a wide range of limitations originating from different sources, with the result that limitations are to be expected and cannot be seen as exceptions. In this regard, the dissertation considers the justification issue from a constitutional perspective to determine whether it is necessary to justify all limitations on the right to exclude. From this perspective, justification for a limitation is not based on normative grounds, but instead focuses on the authority and reason for the limitation and its effect on the affected owner. The point is that limitations on the right to exclude are normal in a legal and constitutional system within which property functions and of which limitations are part. Case law and examples dealing with the conflict between exclusion and access rights indicate that exclusion of non-owners is not always the preferred outcome and that it is not prioritised abstractly. This suggests that the right to exclude is relative and contextual in nature.