The Notion of Absolute and Exclusive Ownership: A Doctrinal Analysis

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Notion of Absolute and Exclusive Ownership: A Doctrinal Analysis

Authors A J van der Walt, Priviledge Dhliwayo

ISSN: 1996-2177
Affiliations: Distinguished Professor and South African Research Chair in Property Law, Stellenbosch University; Post-doctoral Research Fellow, Department of Public Law, South African Research Chair in Property Law, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 34 – 52

Abstract

In South African law, ownership is usually described as an absolute and exclusive right. The idea of absoluteness can be understood as an indication that ownership is the most complete real right, to distinguish it from limited real rights, or that ownership allows the owner freedom in using the property, but only in so far as the law allows. However, even with these qualifications it remains problematic to describe ownership as an absolute right. This article explores doctrinal perspectives on limitations on ownership and specifically on the right to exclude. It furthermore considers the idea that the absoluteness of ownership implies that the right to exclude is either absolute or central to ownership. The conclusion is that neither ownership nor the right to exclude is absolute in any meaningful sense because ownership is limited by limited real rights and by constitutional and statutory law. Stated differently, ownership and the right to exclude are limited by and within the legal system in which they function.

The Removal from Office of a President: Reflections on Section 89 of the Constitution

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Removal from Office of a President: Reflections on Section 89 of the Constitution

Authors Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, Sanlam Centre for Public Management and Governance, University of Johannesburg
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 1 – 33

Abstract

Section 89 of the Constitution regulates the removal from office of the President. The origins of the removal procedures date back to the previous constitutions at a time when the offices of the nominal head of state (State President) and the head of the executive (Prime Minister) were still separated. After the two offices were merged by the 1983 Constitution, the procedures and grounds for the removal from office of the executive President were slightly adapted, but there is little clarity on the difference between a motion of no confidence and the removal from office of the President. The lack of clarity on the nature of these powers also prevails in the 1993 and 1996 Constitutions. It is common cause that the rationale of a motion of no confidence is that the members of Parliament, who elect the leader of the executive and give him or her a mandate to govern, may withdraw that mandate when the Cabinet loses the confidence of Parliament — in both instances with a simple majority vote. It is therefore difficult to justify a two-thirds-majority requirement for the removal from office of the President for a serious violation of the Constitution or the law or for serious misconduct. It can hardly be justified in a constitutional state. The real difficulty is the way in which s 89 of the Constitution has been conceptualised: it deals with the President’s fitness to hold office and the character of the power to examine that is essentially judicial in nature. Unlike measures available to the legislature to hold the executive accountable with a censure motion, a motion of no confidence (s 102) or summons to appear before Parliament (s 56), the seriousness of removal grounds is judged in terms of the principle of proportionality, which functions as a curb on the abuse of power.

An analysis of the contribution of the South African Human Rights Commission to protecting and promoting the rights of children

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

An analysis of the contribution of the South African Human Rights Commission to protecting and promoting the rights of children

Authors Meda Couzens

ISSN: 1996-2126
Affiliations: Senior Lecturer, School of Law, University of KwaZulu-Natal, Durban
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 553 – 585

Abstract

There has been limited research into the activity of South Africa’s national independent human rights institutions (NIHRIs) and their roles in protecting and promoting the rights of children. This article attempts to address this gap by analysing the mandate and the effectiveness of the South African Human Rights Commission (SAHRC) in respect of children’s rights. The mandate and the work of the SAHRC are assessed against the guidelines issued by the United Nations Committee on the Rights of the Child. The article shows that the SAHRC largely complies with the above general guidelines, although improvements are required in terms of the specificity of the mandate pertaining to children, priority given to the rights of children, the diversity of rights issues addressed by the SAHRC, as well as promoting, protecting and monitoring the right of the child to be heard. Positive practices from foreign jurisdictions are used to suggest improvements to the activity of the Commission.

From the grave to the cradle: The possibility of post-mortem gamete retrieval and reproduction in South Africa?

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

From the grave to the cradle: The possibility of post-mortem gamete retrieval and reproduction in South Africa?

Authors Helen Kruuse

ISSN: 1996-2126
Affiliations: Senior Lecturer, Faculty of Law, Rhodes University
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 532 – 552

Abstract

The development of reproductive technologies in the last century, such as effective contraceptive methods, artificial insemination, pre-implantation genetic diagnosis, amongst others, has fundamentally reshaped traditional concepts of reproduction parenthood and has raised practical and ethical concerns. This article describes one such development, namely, post-mortem gamete retrieval (PMGR) for the purposes of posthumous reproduction. In exploring the particular concerns arising from this technology, I argue that South Africa lacks a coherent, considered approach to the issue. In considering models adopted in overseas jurisdictions, and the various bases for the legalisation of such a procedure, I adopt an interest theory of rights to argue for restricted access to such a technology in suitable circumstances.