The non-restoration of land: scope and ambit of section 34 of the restitution of land rights act
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
Unfallen women : negotiations of alternative feminine identities in selected writings by Olive Schreiner
- Authors: Snyman, Vicki
- Date: 2010
- Subjects: Schreiner, Olive, 1855-1920 Criticism and interpretation Schreiner, Olive, 1855-1920 Story of an African farm Schreiner, Olive, 1855-1920 From man to man Schreiner, Olive, 1855-1920 Undine Feminism in literature Women and literature -- South Africa -- History South African literature (English) -- History and criticism
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2214 , http://hdl.handle.net/10962/d1002257
- Description: This study constitutes an inquiry into how Olive Schreiner‟s peripheral position as a colonial woman writer enabled her rewriting of feminine identity, specifically her subversion of Victorian feminine stereotypes. I focus particular attention on three novels: The Story of an African Farm (1890), and the posthumously published From Man to Man (1926) and Undine (1929). I employ a feminist literary approach to examine how Schreiner‟s hybrid identity as a British South African enabled her revisioning of femininity. If Schreiner is situated within the context of her time, it can be demonstrated that her negotiations of feminine identity are influenced by her dual intellectual and cultural heritage. On the one hand, she can be situated within a British tradition of women‟s writing – in particular, the New Woman fiction which emerged in the late nineteenth century. On the other hand, she can be situated within a nascent South African literary tradition – and demonstrates prototypically post-colonial concerns. Schreiner‟s writing style develops out of her colonial heritage and her experiences as a woman living in a patriarchal society. The resultant voice subverts the narrative traditions of the metropolitan novel in an attempt to articulate an alternative view of femininity. I examine in detail how Schreiner undermines and subverts Victorian stereotypes, and focus particular attention on the „fallen woman‟ and the „mother-figure‟. She attempts to challenge conventional Victorian conceptions of femininity by erasing the binary between the „angel‟ and the „whore‟ in order to create a New Woman. In Undine and The Story of an African Farm the full realisation of this New Woman is deferred, since both protagonists die, but From Man to Man is more nuanced, particularly in its emphasis on economic empowerment for women. Schreiner also destabilises traditional notions of motherhood, in order to offer glimpses of an alternative maternal role. It is my contention that, in her depiction of mother-figures and (un)fallen women, Schreiner challenges stock Victorian notions of femininity and, in the process, creates a space in which new possibilities for women can be imagined and negotiated.
- Full Text:
- Date Issued: 2010
- Authors: Snyman, Vicki
- Date: 2010
- Subjects: Schreiner, Olive, 1855-1920 Criticism and interpretation Schreiner, Olive, 1855-1920 Story of an African farm Schreiner, Olive, 1855-1920 From man to man Schreiner, Olive, 1855-1920 Undine Feminism in literature Women and literature -- South Africa -- History South African literature (English) -- History and criticism
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2214 , http://hdl.handle.net/10962/d1002257
- Description: This study constitutes an inquiry into how Olive Schreiner‟s peripheral position as a colonial woman writer enabled her rewriting of feminine identity, specifically her subversion of Victorian feminine stereotypes. I focus particular attention on three novels: The Story of an African Farm (1890), and the posthumously published From Man to Man (1926) and Undine (1929). I employ a feminist literary approach to examine how Schreiner‟s hybrid identity as a British South African enabled her revisioning of femininity. If Schreiner is situated within the context of her time, it can be demonstrated that her negotiations of feminine identity are influenced by her dual intellectual and cultural heritage. On the one hand, she can be situated within a British tradition of women‟s writing – in particular, the New Woman fiction which emerged in the late nineteenth century. On the other hand, she can be situated within a nascent South African literary tradition – and demonstrates prototypically post-colonial concerns. Schreiner‟s writing style develops out of her colonial heritage and her experiences as a woman living in a patriarchal society. The resultant voice subverts the narrative traditions of the metropolitan novel in an attempt to articulate an alternative view of femininity. I examine in detail how Schreiner undermines and subverts Victorian stereotypes, and focus particular attention on the „fallen woman‟ and the „mother-figure‟. She attempts to challenge conventional Victorian conceptions of femininity by erasing the binary between the „angel‟ and the „whore‟ in order to create a New Woman. In Undine and The Story of an African Farm the full realisation of this New Woman is deferred, since both protagonists die, but From Man to Man is more nuanced, particularly in its emphasis on economic empowerment for women. Schreiner also destabilises traditional notions of motherhood, in order to offer glimpses of an alternative maternal role. It is my contention that, in her depiction of mother-figures and (un)fallen women, Schreiner challenges stock Victorian notions of femininity and, in the process, creates a space in which new possibilities for women can be imagined and negotiated.
- Full Text:
- Date Issued: 2010
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