Homeowners’ Associations as Urban Property Management Entities

by | Oct 26, 2022 | SLR, SLR V33 I3

Homeowners’ Associations as Urban Property Management Entities

Authors: GJ Pienaar and JG Horn

ISSN: 1996-2193
Affiliations: B Jur et Com LLB LLD, Professor, Northwest University; B Proc LLB LLM MA(HES) LLD, Senior lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 438 – 459
https://doi.org/10.47348/SLR/2022/i3a5

Abstract

The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.

The Right to Deletion: Identity, Memory, and Surveillance Capitalism

by | Oct 26, 2022 | SLR, SLR V33 I3

The Right to Deletion: Identity, Memory, and Surveillance Capitalism

Author: Yvonne Jooste

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Research Associate, Department of Jurisprudence, University of Pretoria
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 460 – 483
https://doi.org/10.47348/SLR/2022/i3a6

Abstract

This article considers “the right to deletion” enacted under the Protection of Personal Information Act 4 of 2013 and uses the right as a lens through which to contemplate (1) memory, identity, and forgetting in the digital age; (2) the erosion of the privacies of life and the notion of “home” in the context of ubiquitous technologies; and (3) a new form of instrumentarian power created by surveillance capitalist regimes that aims to make individuals into known and knowable entities for economic ends as well as the implications of this form of power for the values of dignity, democracy and privacy. It is suggested that the reclaiming of forgetting is necessary for human growth and agency and that the reclaiming of “home” is required as a shelter for the privacies of life, intimacy, and freedom. The argument is also made that the right to deletion should be understood within the context of the increasing loss of privacy within societies under techno-capitalist control.

Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

by | Oct 26, 2022 | SLR, SLR V33 I3

Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

Author: Oliver Fuo

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, Faculty of Law, North-West University, South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 484 – 500
https://doi.org/10.47348/SLR/2022/i3a7

Abstract

Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.

King Nno V De Jager 2021 4 SA 1 (CC): Three Perspectives

by | Oct 26, 2022 | SLR, SLR V33 I3

King Nno V De Jager 2021 4 SA 1 (CC): Three Perspectives

Authors: François du Toit, Matthew Harding and Andreas Humm

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Senior Professor, Faculty of Law, University of the Western Cape; BA (Hons) LLB (Hons) BCL DPhil, Dean, Melbourne Law School, University of Melbourne; Dr iur Mag iur, Former Research Associate, Max Planck Institute for Comparative and International, Private Law, Hamburg
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 501 – 528
https://doi.org/10.47348/SLR/2022/i3a8

Abstract

In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

by | Oct 26, 2022 | SLR, SLR V33 I3

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Authors: Bonginkosi Shozi, Roasia Hazarilall and Donrich Thaldar

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Postdoctoral Scholar, Institute for Practical Ethics, UC San Diego, Honorary Research Fellow, University of KwaZulu-Natal; LLB, Masters candidate, University of KwaZulu-Natal; BLC LLB MPPS PGDip PhD, Professor, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

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Shozi, B, Hazarilall, R and Thaldar, D
Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)
Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

Abstract

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

Author: Richard Cramer

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 548 – 559
https://doi.org/10.47348/SLR/2022/i3a10

Abstract

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.