Research Articles (Private Law)

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The abuse of the trust (or: "Going behind the trust form") : The South African experience with some comparative perspectives
(Mohr Siebeck, 2012-10) De Waal, Marius J.
INTRODUCTION: Sometime during 1994 a trust was created with a certain Mr. Badenhorst, a successful farmer near a small South African town, as one of its trustees. At the time he was happily married. The marriage between Mr. Badenhorst and his wife was out of community of property, meaning that each one of the parties to the marriage had an own separate estate (or “patrimony”).
The adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and Louisiana
(Juta Law Publishing, 2008-02) Van der Merwe, C. G.
INTRODUCTION: Since the maxim superficies solo cedit disallows separate ownership of land and parts of a building, special legislation was necessary in South Africa, Sri Lanka and Louisiana to breach this principle of accession and legitimize the institution of apartment ownership in these mixed jurisdictions. At the time when urgent housing shortages, especially near centers of employment, compelled these jurisdictions to promulgate statutes to regulate apartment ownership, the most attractive workable precedents available were the common law statutes of New South Wales, British Columbia and certain United States’ statutes. The great success which especially New South Wales enjoyed in providing housing to thousands of Australians led to the transplantation of the New South Wales statute to South Africa and Sri Lanka. The impetus for the first generation Louisiana Horizontal Property Act of 1962 was the availability of Federal Housing Authority insured mortgages for condominiums in states where condominium regimes were authorized by local law. This Act is copied almost verbatim from the Arkansas Property Act, which in turn borrowed from the Puerto Rican statute altering the civilian terminology in that statute to suit common law requirements. Because of numerous shortcomings, the Horizontal Property Act was replaced by the Condominium Act of 1974 and finally the Condominium Act of 1979. Although these second and third generation Louisiana statutes conform to the terminology of the Civil Code, the latest Act borrowed heavily from the Uniform Condominium Act approved by the Commissioners on Uniform State Laws in 1977. The Uniform Condominium Act and the New South Wales strata legislation are the two most sophisticated common law statutes in the world.
Alternatiewe benaderings ten opsigte van feitelike kousaliteit in die deliktereg
(LitNet, 2013-12) Wessels, Bernard
In Lee v Minister of Correctional Services is die eiser tydens sy aanhouding in die Pollsmoorgevangenis met tuberkulose (TB) geïnfekteer. Hy beweer dat die verweerder se werknemers op nalatige wyse versuim het om die bestaande gesondheidsmaatreëls toe te pas, welke versuim op onregmatige wyse sy infeksie veroorsaak het, en hy stel gevolglik ’n skadevergoedingseis teen die verweerder in. Weens die besondere aard van ’n TB-infeksie is dit onmoontlik om die bron daarvan te identifiseer en bygevolg op oorwig van waarskynlikheid te bewys dat die nalatige versuim van die tronkowerhede die die feitelike oorsaak van die eiser se skade is. Tog bevind die verhoorhof en die konstitusionele hof dat daar wel ’n kousale verband tussen die eiser se skade en die verweerder se nalatige versuim was. Die konstitusionele hof bevind voorts dat al die elemente van ’n delik deur die eiser bewys is en stel die verweerder deliktueel aanspreeklik. Die feite van hierdie saak illustreer die kompleksiteit wat die kousaliteitsvraag soms kan binnedring asook die uitdagings wat die gemeenregtelike conditio sine qua non- of but for-toets vir feitelike kousaliteit in uitsonderlike feitegevalle moet trotseer.
The availability of the mandament van spolie when upon the subdivision of a farm into two portions and the alienation of these portions to different owners, an existing exit road is replaced : Van Rhyn NNO v Fleurbaix Farm (Pty) Ltd 2013 5 SA 521 (WCC)
(Juta Law, 2014-01) Van der Merwe, C. G.
This case concerns the availability of the mandament van spolie in a particular scenario. The context is the subdivision of a plot of land. After the subdivision the owner of one of the subdivided portions closed off a gravel road that provided access to a public road to the owners of both subdivided portions. In an application for a spoliatory order the court a quo directed the appellants to restore the respondent's right of access by way of the gravel road across their property to the road connecting the two properties to the public road. This case came on appeal to the full bench of the Western Cape division of the high court.
The battle of the Bakgatla-Ba-Kgafela community : access to and control of communal land
(North-West University, Faculty of Law, 2017) Pienaar, Juanita Magrietha
Like numerous other traditional communities in South Africa, the Bakgatla-Ba-Kgafela community lost portions of their ancestral land in the pre-constitutional era. Under an all-encompassing land reform programme, which also provides for the restitution of land in particular circumstances, a land claim was lodged. Having been successful with the land claim as all of the requirements set out in the Restitution of Land Rights Act 22 of 1994 were met, the first battle of the community in reclaiming their land had been won. The initial victory was short-lived as a second battle ensued, dealing with the governance of and form of control over the newly restored land. While the community wanted a communal property association, provided for in the Communal Property Associations Act 28 of 1996, the traditional leader preferred a trust. In this regard the various options of forms and constructs of collective ownership came into play. The second battle resulted in the Constitutional Court's deciding in favour of a communal property association in the light of the overall scheme of the Communal Property Associations Act, its objectives, the particular role of the Director-General of the Department of Rural Development and Land Reform, and all that had transpired in this particular case. This contribution deals with both of these battles, first setting out the struggle to reclaim the lost land, and then discussing the conflict over ownership and governance issues brought to finality in Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority 2015 6 SA 32 (CC). In this regard the judgment is analysed and thereafter reflected on with respect to recent developments linked specifically to communal property association legislation and then to other developments impacting on communal land and traditional communities in general. With regard to the former, recent draft amendments to the Communal Property Associations Act are highlighted, whereas policy developments and draft legislative measures are discussed with regard to the latter. While it is possible that some of the recent suggested amendments embodied in the Amendment Bill would have streamlined the process had these amendments been in operation when the Bakgatla-Ba-Kgafela community fought the second battle, various problems remain. In this context markedly different - conflicting - approaches emerged from the Constitutional Court judgment and official policy measures. Whereas the Court confirmed more democratic forms of ownership and governance in general, but specifically with respect to traditional communities, official policy documents coupled with draft legislative measures relating to traditional courts entrench traditional leadership constructs. In this regard more democratic forms of governance and ownership are seemingly reserved for areas outside traditional communal areas, most notably outside the former homelands. While the judgment handed down in the Constitutional Court may have brought closure to the Bakgatla-Ba-Kgafela community regarding the formation of a communal property association, the struggle of other traditional communities opting for communal property associations may just be beginning.
Die betekenis van 'n ontneming weens 'n rasdiskriminerende wet of praktyk vir doeleindes van die Wet op Herstel van Grondregte 22 van 1994 - 'n oorsig van ontwikkelings in regspraak
(LitNet Academic, 2012-12) Pienaar, Juanita M.
OPSOMMING: Persone of gemeenskappe kwalifiseer vir restitusie indien hul ontneem is van ’n reg in grond na 19 Junie 1913 as gevolg van ’n rasdiskriminerende wet of praktyk. Die Wet op Herstel van Grondregte 22 van 1994 verskaf nie werklik duidelikheid oor wat onder “as gevolg van ’n rasdiskriminerende wet of praktyk” verstaan word nie. Gevolglik is dit die taak van die howe om die relevante frase te interpreteer en op bepaalde feite toe te pas. Die frase is ’n belangrike deel van die regsvereistes alvorens ’n grondeis suksesvol kan wees. Aan die een kant beteken dit dat nie sommer enige ontneming vir restitusie kwalifiseer nie. Aan die ander kant is dit algemeen bekend dat die hele Suid-Afrikaanse grondbeheerstelsel voor 1991 in beginsel op ’n rassebasis gefunksioneer het. Wat presies word dus onder hierdie frase verstaan? Die doel van hierdie bydrae is om aan die hand van regspraak bepaalde benaderings (of toetse) te identifiseer en te bepaal of ’n spesifieke benadering ’n bepaalde resultaat sou bewerkstellig. Die uitgangspunt is dat die Restitusiewet, omdat dit uit hoofde van die Grondwet (artikel 25(7)) uitgevaardig is, ook ’n doelmatige interpretasiebenadering vereis. In hierdie proses is egter oor die jare drie verskillende benaderings (of toetse) in drie toonaangewende hofbeslissings ontwikkel. ’n Uiteensetting van die verskillende benaderings en ’n vergelyking daarvan dui aan dat die resultate inderdaad verskil, afhangende van die benadering wat gevolg word. Nadat die huidige (jongste) benadering van die Popela-uitspraak (konstitusionele hof) bespreek is, word die mees onlangse beslissing, Jacobs, waarin die optrede van staatsamptenare ter sprake was, in die lig van dié benadering ontleed. Die slotsom is dat hoewel duidelikheid ten aansien van die algemene doelmatige benadering tot interpretasie verkry is, die oorsaaklikheidskwessie moontlik nog steeds problematies kan wees.
Can personal servitudes be worded in such a way that they are perpetual in nature and thus freely transferable and transmissable
(Juta Law, 2013-01) Van der Merwe, C. G.
The issues in Resnekov v Cohen (2012 1 SA 314 (WCC)) were whether a restrictive condition inserted into the title deeds of the servient property constituted a praedial or personal servitude, and if found to be personal, whether it could be made transferable to successors in title by the correct wording of the restrictive condition in title deeds of the servient property.
Certainty about surrogacy
(Juta Law Publishing, 2010-09) Mills, Lize
Summary: With the recent coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010, the previous legal position relating to surrogacy has been completely altered. Prior to the commencement of these provisions of the Act, commissioning persons in a surrogacy relationship had to adopt the artificially conceived child in terms of the Child Care Act 74 of 1983. In June 2009, at a time when the Child Care Act was still in force, the North Gauteng High Court found, inter alia, that the adoption procedure may be ignored and that the commissioning parents will automatically be regarded as the child’s parents. The Court provided no reasons for its decision. Since the most important question in a legal, moral, religious and philosophical issue such as surrogacy is to determine the parental responsibilities and rights of the parties involved, it was of the utmost importance that the previous unsatisfactory and confusing position be clarified. This note aims to explain the background to the Court’s order and to evaluate the decision in view of the legal position applicable at the time. It also discusses the possible implications of this order as well as the certainty which the amendments to the law, in terms of Chapter 19 of the Children’s Act, will hopefully bring.
Circuit courts in the Cape Colony during the nineteenth century : hazards and achievements
(UNISA Press, 2013) Erasmus, H. J.
The circuit courts established by the Earl of Caledon in 1811 introduced the fundamental features characteristic of proceedings at common law to the Cape and thus constitute an important precursor to the Charters of Justice of 1827 and 1832. They also paved the way for the circuit courts established in 1827 under the First Charter of Justice, the predecessors of the circuit courts which to this day form part of the legal landscape in South Africa. During the nineteenth century, judges of the Cape Supreme Court regularly visited outlying towns and districts to hear both civil and criminal cases. The circuits lasted for weeks and long distances were travelled under primitive and hazardous conditions. The judges and counsel often had to endure great physical hardship. They all stuck to their task with commendable tenacity and perseverance. In the circumstances, the contribution of the Cape judges to the development of South African law and to the survival of the Roman-Dutch law was a remarkable achievement. The circuit courts brought to the outlying districts the administration of justice at the highest level. The sittings of the courts were open to the public, and the community participated in the proceedings by way of jury service. All this contributed to the integration of the administration of justice into the social fabric and "judicial conscience" of the people in the outlying communities. The circuit courts played a major role in entrenching the English procedural and judicial style in the minds of the people, and in bringing home the message that the courts were open to all the people of the colony, and that the protection of the courts extended to all of them.
A comparative perspective on the "joint-action rule" in the context of business trusts
(Juta Law Publishing, 2014-01) De Waal, M. J.; Du Plessis, I.
The "joint-action rule" in South African trust law entails that all trustees must act jointly in order to bind the trust. Non-compliance with the rule will most often lead to the invalidity of a contract between the trustees and an outsider. Hence, in the context of business trusts, the application of the rule may be particularly problematic. We submit that the main reason why the business trust remains a useful institution is that the trust brings with it, through the importation of certain standard features, important advantages that need not be specifically bargained for. However, normal rules of trust law, such as the joint-action rule, must also be complied with. Hence, mechanisms to ameliorate some of the problematical effects of this rule can be put in place, such as provisions stipulating that decisions can be taken by a majority of the trustees, or that the trustees can delegate certain defined duties or powers. It is clear, however, that difficulties remain and that South African courts are still facing challenges in developing this area of trust law. But South Africa is not the only trust jurisdiction where the joint-action rule applies and where mechanisms have been developed to address the difficulties experienced with this rule. Comparing the position in South Africa to that in England, Scotland and Canada (including Québec), a remarkable degree of similarity between South Africa, on the one hand, and the other jurisdictions, on the other, as far as the basic application of the joint-action rule is concerned, can be noted. However, there are a number of differences as well. In many of the other jurisdictions legislation generally plays a much bigger role than in South Africa and it may provide a rich source of ideas for the development of this area of South African trust law.
Comparative survey of the legal challenges faced by mixed-use sectional title (condominium) developments
(Juta Law, 2018) Van der Merwe, C. G.
ENGLISH ABSTRACT: Over the years mixed-use sectional titles (strata titles, condominium) schemes have become increasingly popular over the world and also in South Africa. A mixeduse sectional titles scheme consists typically of a combination of residential and commercial units, but the term can also apply to the combination of residential units and office units or a combination of residential, commercial and office units.1 The increased popularity of mixed-use residential and commercial schemes2 can be attributed to the increased popularity of residential strata title homes in general. Again, the ability to combine the carefree lifestyle afforded by strata title ownership with the conveniences of in-house shops, offices and restaurants appeals to many house buyers.
Compliance with section 25(2)(b) of the Constitution : when should compensation for expropriation be determined
(Juta Law, 2012-11) Boggenpoel, Z. T.
Computer programs and copyright : the South African perspective
(Juta Law, 2006-01) De Villiers, Roux
This article critically analyses the South African legal position in regard to the protection of computer programs by copyright, as established by the courts through the application of the provisions of the Copyright Act 98 of 1978. Particular emphasis is placed on defining the nature of computer programs and on the methods by which authorship, originality and infringement (as it relates to computer programs) are established. Some of the potential problems that exist in the current legal dispensation are identified and solutions to such problems are proposed by using appropriate international precedents. The economic implications arising from the application of copyright protection to computer programs are considered as part of this analysis.
Computer Says No : enforcing divorce upon persons who changed their sex in Europe and South Africa
(Northumbria University Library, 2020) Mills, Lize
As is the case with marriage, divorce should be entered into freely and voluntarily. The State should not demand that a marriage be ended if neither one of the spouses wishes for it to be terminated. Yet, several countries still impose such an obligation in instances where one or both of the parties to the marriage changed their sex during the existence of the marriage, in order for such a person to attain legal recognition of the sex change. This article analyses some of the case law in Europe and South Africa where the courts have had to intercede in instances in which differential treatment was being justified in the name of so-called pragmatism. It examines some of the possible reasons for imposing this obligation upon married couples and the effect that this requirement has on their lives. Furthermore, it explores why it is incorrect to require the termination of marriage after a change of sex, how genderism and transphobia has caused differential and discriminatory treatment of transsexual persons, and how institutional bias and a lack of appreciation for the lived reality of people who do not necessarily fit into categories of generated systems, continue to negate the human rights of some humans.
The condictio quasi indebiti
(UNISA Press, 2010) Du Plessis, Jacques
This essay focuses on something called the condictio quasi indebiti. This condictio is not well-known in South African law. In fact, it features only twice in the law reports: first, almost a century ago, in a judgment of De Villiers JP in Van Wijk’s Trustee v African Banking Corporation,1 and then, more recently, in a judgment of Harms JA in Bowman, De Wet and Du Plessis NNO v Fidelity Bank Ltd.2 Something this rare may either be so precious that it deserves to be saved from obscurity, or it may be so insignificant that it deserves to be consigned to the past. The challenge is then to determine whether there is indeed any need for recognising such a condictio in modern South African law. In furtherance of a methodology favoured by the Jubilar, the perspective adopted here will be historical, taking Roman sources as the point of departure, and then enquiring whether these sources provide insights that are useful for modern purposes.
The constitutional mandate for social welfare – systemic differences and links between property, land rights and housing rights
(North-West University, Faculty of Law, 2015) Van der Walt, Andries Johannes; Viljoen, Sue-Mari
Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights. We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either. Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.
The continued relevance of the mandament van spolie : recent developments relating to dispossession and eviction
(University of Pretoria, 2013) Boggenpoel, Z. T.; Pienaar, Juanita
Ten spyte daarvan dat artikel 26(3) van die Grondwet die uitsetting van persone in die afwesigheid van ’n hofbevel verbied, het drie onlangse hofsake aangedui dat sulke uitsettings steeds plaasvind. Hoewel verskeie opsies vir die applikante (staatsorgane) beskikbaar was om persone uit geboue en skuilings te verwyder, (nood-, gesondheids- en rampmaatreëls en die Uitsettingswet 19 van 1998), is uitsetting in die gevalle onder bespreking effektiewelik bewerk deur spoliasie – van die gebou of skuiling as ’n geheel of van elemente wat integraal tot die skuiling was (ontneming van dakplate). Om besitsherstel te bewerkstellig (en uitsetting om te keer), is die mandament van spolie deur die respondente geopper. Hoewel die feite en omstandighede soortgelyk (maar nie identies nie) was, is die uitsprake taamlik uiteenlopend. In twee van die drie sake was die mandament onsuksesvol en is ’n grondwetlike besitsherstelremedie ontwikkel. In die derde geval was die mandament inderdaad suksesvol, hoewel die dakplate met plaasvervangende materiaal herstel moes word. Die bydrae ontleed die drie sake in die lig van (a) die basiese beginsels van die mandament en die redes vir die remedie in die algemeen; en (b) die noodsaaklikheid (al dan nie) om die remedie te ontwikkel. Dit wil voorkom of die mandament toenemend aangewend word om ander oogmerke, byvoorbeeld grondwetlike beskerming teen uitsetting, te bereik. Dit is problematies in die lig daarvan dat die mandament nooit beoog het om substantiewe regte of, soos in hierdie gevalle, veilige grondbeheer (“secure tenure”) daar te stel nie. Wat egter duidelik na vore kom, is dat (a) die Uitsettingswet nie persone beskerm wat in dieselfde posisie as die respondente is nie omdat die Wet te reaktief is; en (b) dat die mandament steeds relevansie het deurdat alle rolspelers gedwing om aan ŉ formele proses wat by ŉ openbare forum afspeel, deel te neem. Solank as wat die leemtes in die Uitsettingswet voortbestaan, is die mandament relevant, nie net as besitsherstelremedie nie, maar ook as meganisme om die belange van kwesbares – veral by onwettige uitsetting – uit te lig.
Creating a servitude to solve an encroachment dispute : a solution or creating another problem?
(Academy of Science of South Africa, 2013) Boggenpoel, Z. T.
The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The decision in this case has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Concerning these policy reasons, the note investigates the reasonableness standard as it was applied in the case. It is argued that it is important to differentiate between the applications of reasonableness in encroachment cases and alleged nuisance disputes.
A critical analysis of the innovations introduced by the Sectional Titles Amendment Bill of 2010
(Juta Law Publishing, 2011-01) Van der Merwe, C. G.
The Sectional Titles Amendment Bill of June 2010 proposes to address gender equality, remove obsolete provisions, make technical adjustments, extend consumer protection and eliminate a substantial number of problems encountered in the practical application of the Act. The most important amendments relate to an adaptation of the definitions of "developer" and "owner"; the facilitation of unanimous resolutions; the clarification of whether doors and windows form part of a section or part of the common property; the rectification of the discrepancies pertaining to certificates of real right of extension of sections and of exclusive use areas; the fractionalisation of undivided shares in units; the extension of sections and of schemes by the addition of sections; contributions to the administrative fund and the legalisation of special levies; and a freeze on the use of exclusive use areas. This will transform the Sectional Titles Act into a highly efficient statutory instrument to tackle the ever-increasing issues facing the sectional title industry, bring clarity to conveyancers and deeds registry officials, and strengthen the position of trustees and managing agents involved in the governance of schemes. However, the relation between the relevant provisions of the Act and the Local Government: Municipal Property Rates Act 6 of 2004, needs tidying up. Further main issues of concern are the overfractionalisation of rights of exclusive use; the fact that the new owner is not made liable for outstanding instalments on special levies after a unit has been registered in his or her name; the non-qualification of the wide discretion of trustees to impose special levies; the unclear division of the fund for administrative expenses into an operational and a reserve fund budgeted for at each annual general meeting and the non-adoption of a two-tiered management structure for larger and especially mixed-use schemes.
Determining the moment when enrichment liability is quantified : the curious case of Paschke v Frans
(Juta Law, 2016-06) Du Plessis, Jacques
A well-established principle of South African law, and indeed many other jurisdictions, governs the measure or quantum of claims based on unjustified enrichment. The principle is that we do not enquire into what the defendant obtained at the moment of the initial enriching event, but that we rather focus on whatever remains in the defendant’s estate. Or, to put it differently, the measure of an enrichment claim is not the value received, but the value remaining. But if the measure of enrichment is that of value remaining, at what moment is this value to be determined? This question was central to the recent decision of the supreme court of Namibia in Paschke v Frans.

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