Browse
Recent Submissions
Item Open Access A critical investigation of state custodianship and its implications for the South African property regime(University of the Free State, 2022) September-van Huffel, Anthea-Lee; Horn, J. G.The South African public is increasingly being exposed to political debates on state custodianship of all rural or agricultural land, particularly within the context of land reform initiatives. However, what first appeared like a surreptitious shift towards state custodianship of land on the part of some political parties is now boldly stated in the objects of the Constitution Eighteenth Amendment Bill, 2021,¹ thereby confirming a potential sociopolitical trend towards state custodianship of land within the land reform context.² If applied to land, state custodianship would entail strict regulatory control over the natural resource, with unique features and legal implications,² which may pose challenges to the existing property regime and security of land tenure. Therefore, this thesis examines the construct of state custodianship and its application to South Africa's natural resources,⁴ its legal implications, and its application to the existing property regime, particularly to transformative land reform.Item Open Access Die invloed van die stipulatio alteri op die inter vivos trust in die Suid-Afrikaanse reg: voorgestelde oplossings vir beter regulering(University of the Free State, 2017-06) Van Zyl, Rika; Smith, B. S.English: The deed of trust in terms of which an inter vivos trust is established is currently dealt with as a species of the contract for the benefit of a third party (stipulatio alteri) in South African law. Therefore, the stipulatio alteri serves as (an artificial) framework to explain the functioning of the inter vivos trust with reference to Roman-Dutch law. However, in the course of its historical development in South Africa, certain unsound consequences have been attached to the stipulatio alteri and, more particularly, the acceptance requirement, which have a significant impact on the understanding of the rights acquired by the third party to the agreement. A sound (accurate) interpretation of the stipulatio alteri is required to provide legal certainty regarding the consequences of acceptance, and the rights obtained by the third when (s)he accepts. Nevertheless, the unsound interpretation of the stipulatio alteri is currently utilised to assist in explaining the inter vivos trust in terms of certain contractual aspects of the trust deed, the beneficiary’s acceptance and concomitant rights, as well as the amendment or revocation of the deed of trust. This causes multiple problems for the functioning of the inter vivos trust, which have been exacerbated by the courts’ poor understanding of the functioning of the stipulatio alteri and its application to the inter vivos trust. An extremely uncertain application of the inter vivos trust has arisen as a result, particularly in respect of the beneficiary’s rights. In addition, sight should not be lost of the trust law features of the inter vivos trust. This requires a careful balance between, on the one hand, the fiduciary duty in terms of the law of trusts and, on the other, the contractual aspects. Apart from suggesting a potential sound interpretation of the stipulatio alteri, this research also proposes further solutions to the uncertainties and problems currently experienced in regulating the inter vivos trust.Item Open Access Die invloed van die stipulatio alteri op die inter vivos trust in die Suid-Afrikaanse reg: voorgestelde oplossings vir beter regulering(University of the Free State, 2017-06) Van Zyl, Rika; Smith, Bradley ShaunEnglish: The deed of trust in terms of which an inter vivos trust is established is currently dealt with as a species of the contract for the benefit of a third party (stipulatio alteri) in South African law. Therefore, the stipulatio alteri serves as (an artificial) framework to explain the functioning of the inter vivos trust with reference to Roman-Dutch law. However, in the course of its historical development in South Africa, certain unsound consequences have been attached to the stipulatio alteri and, more particularly, the acceptance requirement, which have a significant impact on the understanding of the rights acquired by the third party to the agreement. A sound (accurate) interpretation of the stipulatio alteri is required to provide legal certainty regarding the consequences of acceptance, and the rights obtained by the third when (s)he accepts. Nevertheless, the unsound interpretation of the stipulatio alteri is currently utilised to assist in explaining the inter vivos trust in terms of certain contractual aspects of the trust deed, the beneficiary’s acceptance and concomitant rights, as well as the amendment or revocation of the deed of trust. This causes multiple problems for the functioning of the inter vivos trust, which have been exacerbated by the courts’ poor understanding of the functioning of the stipulatio alteri and its application to the inter vivos trust. An extremely uncertain application of the inter vivos trust has arisen as a result, particularly in respect of the beneficiary’s rights. In addition, sight should not be lost of the trust law features of the inter vivos trust. This requires a careful balance between, on the one hand, the fiduciary duty in terms of the law of trusts and, on the other, the contractual aspects. Apart from suggesting a potential sound interpretation of the stipulatio alteri, this research also proposes further solutions to the uncertainties and problems currently experienced in regulating the inter vivos trust.Item Open Access The development of South African matrimonial law with specific reference to the need for and application of a domestic partnership rubric(University of the Free State, 2009-11) Smith, Bradley Shaun; Brand, F. D. J.; Robinson, J. A.English: In strictly adhering to the concept of marriage inherited from the Western legal tradition, pre-1994 South African family law paid scant regard to marriages other than monogamous heterosexual civil marriages, while the common law provided no express legal recognition for unmarried life or domestic partnerships. The advent of the democratic constitutional era in 1994 however spawned a flurry of legal development that broadened the notion of marriage by recognising customary marriages as well as certain consequences of marriages concluded according to the tenets of a recognised faith such as Islam. Commencing with the watershed National Coalition for Gay and Lesbian Equality cases,' the legal position in which same-sex life partners found themselves was also dramatically improved by a number of ad hoc judicial pronouncements which extended certain consequences of marriage to such partners on the premise that they were at the time precluded from marrying one another. The flipside of this premise-namely that heterosexual life partners have always been permitted to marry one another and thus cannot request an extension of matrimonial (property) law where they have exercised a choice not to marry (the so-called "choice argument")-was, however, to constitute the major justification for the judiciary's refusal to extend similar recognition to heterosexual life partners. The application of this line of reasoning has implied that, within little more than a decade into the democratic constitutional dispensation, same-sex life partners ostensibly enjoy better legal protection and recognition of their relationships than their heterosexual counterparts. This state of affairs implies that the current legal position regarding unmarried life partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided increasing recognition for unmarried life partners. However, as was the case with the judicial developments, the legislative developments were also merely piecemeal in nature. The upshot of this state of affairs is that interpersonal relationships in South Africa are governed by "a patchwork of laws that did not [and still do not] express a coherent set of family law rules." While the validation of same-sex marriages by way of the promulgation of the Civil Union Act 17 of 2006 was a salutary development from a human rights perspective, this development has created difficulties of its own. To begin with, the validation of samesex marriage implies, strictu sensu, that the "choice argument" applies equally to samesex couples who elect not to marry one another. This entails that such couples could potentially be deprived of the consortium omnis vitae that the Courts have in principle found to exist between them and that they may no longer be able to rely on the piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day on which same-sex marriage became permissible). The legal position in this regard however remains unclear. In addition, the validation of same-sex marriage has been accomplished by way of legislation that not only requires same-sex couples to marry one another in terms of separate legislation but that also further overcomplicates the legal landscape by providing for "civil unions" that can take the form of either marriages or civil partnerships. As such, no legislation has as yet been enacted that deals with the position of life or domestic partners per se. In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using this Bill as a prototype, this study attempts-by applying a domestic partnership rubric that requires the modification of the Bill and its calibration with attendant legislation-to iron out the inconsistencies and anomalies alluded to above by providing effective domestic partnership legislation. In order to achieve this, an in-depth analysis of case law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships legislation itself, but which are also required in order to facilitate the Bill's alignment with applicable legislation. In the light of the modified Bill, the study concludes with an evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis, the conclusion is reached that the enactment of the Domestic Partnerships Bill as developed in accordance with the rubric, coupled with the repeal of the Civil Union Act 17 of 2006, will provide a more consistent, coherent and less complex legal framework within which interpersonal relationships in South Africa can be regulated.Item Open Access Die beskerming van kredietwaardigheid in die Suid-Afrikaanse reg(University of the Free State, 1986-01) Klopper, Hendrik Balsazer; Claasen, J. Y.Afrikaans: Die probleem wat in hierdie studie hanteer word, is of kredietwaardigheid werklik met die persoonlikheidsregtelike lama van 'n persoon gelykgeskakel kan word en of dit daarmee ooreenstem soos wat tans die siening van die geldende reg is. Leiding moet noodwendig by die kredietgewingspraktyk in die feitelike werklikheid gesoek word omdat dit die taak van die regswetenskap is om verskynsels in die feitelike werklikheid tot regulerende regsreëls te herlei. Die werklikheidsbeskouing van kredietwaardigheid toon merkbare afwyking van die regswerklikheid. Kredietwaardigheid in die feitelike werklikheid word omskryf as die vertroue wat die kredietontvanger (skuldenaar) by die kredietgewer (skuldeiser) verwek in die wil en vermoë om sy finansiële verpligtinge te kan nakom. Die beskouing van die reg van kredietwaardigheid moet dan aan die hand hiervan geskied. Sekere regstelsels verleen direkte erkenning aan kredietwaardigheid en is in pas met die werklikheidsbeskouing van kredietwaardigheid. (Die Duitse, Oostenrykse en tot 'n mate, die Nederlandse reg). Ander regstelsels plooi weer die beginsels van die lasterdelik om beskerming te bewerkstellig terwyl sommiges statutêre beskerming bied (Engeland, Amerika en Kanada). Hierdie wetgewing het ook 'n voorkomende uitwerking. Die Romeinse en Romeins-Hollandse reg erken nie kredietwaardigheid as 'n spesifieke belang nie en ook is daar besliste twyfel of hierdie regstelsels kredietwaardigheid as 'n faset van dié fama geken het. Tog word daar tekste in hierdie regstelsels aangetref wat verwys na die vertrouenselement wat in kredietwaardigheid te vinde is. Die Suid-Afrikaanse reg benader kredietwaardigheid as synde 'n faset van die persoonlikheidsregtelike lama of as sinoniem daarvan en wend die lasteraksie aan om beskerming daarvan te bewerkstellig. Omdat kredietwaardigheid in die werklikheid nie die lama van'rtpersoon is nie, word van die erkende beginsels van die lasteraksie afgewyk om beskerming te bewerkstellig. So word weinig aandag aan die onregmatigheids- en skuldelement gegee en in sommige gevalle word onregmatigheid en skuld (opset) selfs verontagsaam ten einde kredietwaardigheid te beskerm. Kredietwaardigheid verskil in wesensopsigte van fama en hierdie andersheid word beklemtoon deur die feit dat 'n regspersoon wat oor geen persoonlikheidsregtelike fama kan beskik nie, tog kredietwaardig kan wees. Kredietwaardigheid kan nie met die persoonlikheidsregtelike lama gelykgeskakel word nie. So 'n gelykskakeling beteken dat die verlies aan lama ook verlies aan kredietwaardigheid meebring wat nie noodwendig die geval is nie. Hierdie gelykskakeling misken ook een van die grondelemente van kredietwaardigheid, naamlik die vermoë om te kan betaal. Die aantasting van kredietwaardigheid gee in die meeste gevalle aanleiding tot vermoënskade wat 'n aanduiding is van die belang wat betrokke is, naamlik 'n vermoënsbelang. lndien 'n regswetenskaplike nis vir kredietwaardigheid gesoek word, resoneer dit as subjektiewe reg onder die immateriële goedereregte synde 'n geesteskepping van die mens op ekonomiese gebied. Daarby voldoen kredietwaardigheid aan al die vereistes vir 'n subjektiewe reg. Omdat kredietwaardigheid 'n vermoënsreg, te wete 'n immateriële goedereg is, is die beginsels van die actio legis Aquiliae daarop van toepassing wat beteken dat nalatigheid voldoende is om aanspreeklikheid te vestig. Skade weens kredietwaardigheidsaantasting is ook met 'n redelike mate van juistheid berekenbaar. Dit beteken egter nie dat die aantasting van kredietwaardigheid nie tot 'n aksie vir genoegdoening aanleiding kan gee wanneer die benadeelde kan aantoon dat die kredietbenadelende bewering ook sy fama of dignitas aangetas het nie. In so 'n geval moet die sekondêre betekenis van die bewering egter blyk omdat die klassieke inbreukmakingshandeling tegelyk regmatig en onregmatig kan wees. Uit die gelyktydige regmatigheid en onregmatigheid van die inbreukrnakingshandeling ontstaan 'n dilemma omdat die benadeelde nie weet waarom krediet hom geweier word nie. Hierdie verskynsel veroorsaak dat die gemeneregtelike aksies, alhoewel voldoende, nie prakties beskerming kan bied nie. Om hierdie gebrek te verwyder beteken dat wetgewing ter verpligting van die openbaarmaking van inligting met die behoud van die gemeneregtelike aksies en wat terselfdertyd die geldigheid en verspreiding van sulke inligting beheer, noodsaaklik is. Nie alleen sal dit inbreukmakings voorkom en beskerming verhoog nie, maar sal dit ook die geleentheid bied om inbreukmakings op privaatheid weens die versameling en verspreiding van kredietinligting te beheer.Item Open Access 'n Regshistoriese ondersoek na die juridiese aard en ordening van begraafplase in die Suid-Afrikaanse reg(University of the Free State, 2016-01) Cloete, Neville; Claassen, N. J. B.English: In Roman law things like burial grounds or tombs were classified as res nullius or things that belong to nobody. These things were not susceptible to human ownership and were also known as res divini iuris or things subject to divine law. They were also referred to as res religiosae as opposed to res profanae or profane things since they were endowed with special religious significance. These attributes res religiosae shared with the human body as such which was regarded as an object that was incapable of being owned or subjected to legal and commercial transactions. They were res extra commercium. Res religiosae were also exempt from the ordinary principles and rules of private law and were governed by the ius sacrum or sacred law, which formed part of the ius publicum or public law. Under influence of the Protestant Reformation the Roman-Dutch jurists of the sixteenth century and thereafter introduced a partial secularisation into the law relating to burial places and tombs. Some wrote that the classification of these places as res religiosae had fallen into desuetude and that in Roman-Dutch law all things are susceptible to human ownership, and liable to legal and commercial transactions. Nevertheless they were virtually unanimous in maintaining that despite this relative secularisation respect and reverence had to be shown to the human body and the human tomb or burial place on the ground of the scripturally based believes and doctrines of the resurrection of the glorified human body and eternal life. In the early South African case of Cape Town and District Waterworks v Executor of Elders1 the court held that the Roman classification of things as res religiosae had fallen into disuse, that these things were fully susceptible to ownership and that they could be subjected to legal and commercial transactions. Nothing was said about basic human respect for the human body and its final resting place except that the continued existence of the crime of violatio sepulchri or violation of a tomb was recognised. The court reached this conclusion as a result of a controversial and wrong reading and interpretation of the Roman-Dutch sources. Groenewegen and Van Leeuwen were pitted against Voet, found to have better reflected the contemporary law of their times, and authoritatively applied. Voet on the other hand was held not to have expressed himself on his contemporary law but rather on Roman law and on that basis rejected. Groenewegen and Van Leeuwen were found by the court to have stated without any doubt that the Roman classification of things as res religiosae had fallen into disuse, and that graveyards and other burial places were fully susceptible of ownership and commercial transactions. In this study it is argued that the court strayed and that Groenewegen and Van Leeuwen’s writings never justified such an absolutistic secularisation of the law relating to burial places. When the said two jurists attributed full susceptibility to ownership and commercial transactions to res religiosae they only had the so-called ius sepulchri or the right to bury a body in a particular tomb in mind and not the tomb or place of burial as such. This absolutized secularisation of landownership caused hardship for certain categories of persons such as lessees in terms of a long lease or occupiers of rural and farm land. Land owners were loath to grant burial rights since they believed that the granting of such rights was tantamount to the granting of a servitude over their land with long term consequences and implications. A conservative judiciary endorsed such absolutized ownership of landowners with the result that occupiers could not freely practise their religious and cultural believes in regard to the burial places of their dead. The Extension of Security of Tenure Act2 of 1997 (ESTA) as amended by the Land Affairs General Amendment Act of 20013 brought some relief for occupiers of land since it accords statutory burial rights to them. These rights are original, constitutional and statutory by nature. They exist as rights in their own right independent of any consent from the landowner. They are regarded as original for it is the first time in South African legal history that burial rights are conferred without the consent of the landowner. They are therefore not to be seen as derivative rights derived from the landowner. These rights are also constitutional rights since they find their origin in the Constitution which grants a mandate to the state for the reform of land ownership and for securing security of tenure for all persons. Lastly these rights are statutory by nature since they are embodied in and protected by the ESTA and the Land Affairs General Amendment Act4 which give expression to the state’s constitutional mandate relating to land reform. Despite the obvious benefits brought about by the ESTA it has to be borne in mind that such benefits extend only to a relatively small category of persons, namely occupiers as defined in the ESTA itself. Persons such as long term lessees, bona fide possessors and others are excluded and it is therefore recommended that the legislature should widen the scope of the Act so as to ensure that a broader group of persons qualify for burial rights.Item Open Access The development of South African matrimonial law with specific reference to the need for and application of a domestic partnership rubric(University of the Free State, 2009-11) Smith, Bradley Shaun; Brand, F. D. J.; Robinson, J. A.English: In strictly adhering to the concept of marriage inherited from the Western legal tradition, pre-1994 South African family law paid scant regard to marriages other than monogamous heterosexual civil marriages, while the common law provided no express legal recognition for unmarried life or domestic partnerships. The advent of the democratic constitutional era in 1994 however spawned a flurry of legal development that broadened the notion of marriage by recognising customary marriages as well as certain consequences of marriages concluded according to the tenets of a recognised faith such as Islam. Commencing with the watershed National Coalition for Gay and Lesbian Equality cases,1 the legal position in which same-sex life partners found themselves was also dramatically improved by a number of ad hoc judicial pronouncements which extended certain consequences of marriage to such partners on the premise that they were at the time precluded from marrying one another. The flipside of this premise—namely that heterosexual life partners have always been permitted to marry one another and thus cannot request an extension of matrimonial (property) law where they have exercised a choice not to marry (the so-called “choice argument”)—was, however, to constitute the major justification for the judiciary’s refusal to extend similar recognition to heterosexual life partners. The application of this line of reasoning has implied that, within little more than a decade into the democratic constitutional dispensation, same-sex life partners ostensibly enjoy better legal protection and recognition of their relationships than their heterosexual counterparts. This state of affairs implies that the current legal position regarding unmarried life partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided increasing recognition for unmarried life partners. However, as was the case with the judicial developments, the legislative developments were also merely piecemeal in nature. The upshot of this state of affairs is that interpersonal relationships in South Africa are governed by “a patchwork of laws that did not [and still do not] express a coherent set of family law rules.”2 While the validation of same-sex marriages by way of the promulgation of the Civil Union Act 17 of 2006 was a salutary development from a human rights perspective, this development has created difficulties of its own. To begin with, the validation of samesex marriage implies, strictu sensu, that the “choice argument” applies equally to samesex couples who elect not to marry one another. This entails that such couples could potentially be deprived of the consortium omnis vitae that the Courts have in principle found to exist between them and that they may no longer be able to rely on the piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day on which same-sex marriage became permissible). The legal position in this regard however remains unclear. In addition, the validation of same-sex marriage has been accomplished by way of legislation that not only requires same-sex couples to marry one another in terms of separate legislation but that also further overcomplicates the legal landscape by providing for “civil unions” that can take the form of either marriages or civil partnerships. As such, no legislation has as yet been enacted that deals with the position of life or domestic partners per se. In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using this Bill as a prototype, this study attempts—by applying a domestic partnership rubric that requires the modification of the Bill and its calibration with attendant legislation—to iron out the inconsistencies and anomalies alluded to above by providing effective domestic partnership legislation. In order to achieve this, an in-depth analysis of case law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships legislation itself, but which are also required in order to facilitate the Bill’s alignment with applicable legislation. In the light of the modified Bill, the study concludes with an evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis, the conclusion is reached that the enactment of the Domestic Partnerships Bill as developed in accordance with the rubric, coupled with the repeal of the Civil Union Act 17 of 2006, will provide a more consistent, coherent and less complex legal framework within which interpersonal relationships in South Africa can be regulated.Item Open Access 'n Regshistoriese studie van die finale oorgawe van die Oranje-Vrystaat se konvensionele magte gedurende die Anglo-Boereoorlog (1899–1902)(University of the Free State, 2009-11-30) De Bruin, Jan Hendrik; Henning, J. J.; Wessels, A.English: This study investigates the surrender of the conventional forces of the Orange Free State (OFS) to the British forces on the 30th July 1900. The surrender might signify the end of the existence of the OFS as a state, and implied that the British forces had successfully conquered the OFS. The study provides a legal historical perspective on the events that led to the surrender, the surrender itself and its consequences. The study further explores allegations of high treason, as well as other crimes committed, and allegations of illegal acts with regard to the surrender.