Repository logo

Law

Permanent URI for this communityhttps://hdl.handle.net/10413/12970

Browse

Browsing Law by Author "Freedman, David Warren."

Filter results by typing the first few letters
Now showing 1 - 3 of 3
  • Thumbnail Image
    Item
    A critical analysis of the definition of “property” in clause 1 of the expropriation bill b4d – 2015.
    (2017) Otten, Edward.; Freedman, David Warren.
    Property remains a contentious issue in the new South Africa due to the unequal distribution of wealth. At the heart of this emotive issue is the question of land reform - owing to the history of racially based land dispossession. Politicians have been discussing using expropriation as a method to transform land ownership and redress past injustices. The Expropriation Bill has been introduced in this context with the aim to assist the state in its land reform policies. The Bill contains a definition of property (which is capable of expropriation) that simply directs the reader to Section 25 of the Constitution, which itself has no express or limited definition of property. The logical question which faces scholars, politicians, foreign investors and the man-on-the-street therefore is, “What constitutes property for the purpose of section 1 of the 2015 Expropriation Bill?”
  • Thumbnail Image
    Item
    Local government in the constitutional dispensation: defining the limits of local government’s legislative and executive authority.
    (2020) La Foy, Gabriella Bernadette.; Devenish, George Edwin.; Freedman, David Warren.
    Close on twenty-five years have passed since the adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution). The division-of-powers provisions of the Constitution marked a move away from the previous vertical, centralised system of government towards a more horizontal, decentralised form of government. The foundation of the legal system shifted from a system of parliamentary sovereignty to a model based on constitutionalism, the rule of law, and the observance of human dignity, equality and freedom. This study examines the extent to which the division-of-powers provisions in the Constitution have been realised since the adoption of the Constitution from a local government perspective. This work contributes to earlier research by presenting a comprehensive review of state practice to date. The research was conducted via a review of published work including books, journal articles, dissertations, studies, and working papers. Sources for the investigation include legislation, policy documents, government commissioned reports, white papers, budgets and minutes of parliamentary committees. Using these sources, the judicial interpretation of the constitutional scheme for the allocation of powers is examined and compared with the legislative, fiscal, intergovernmental, and administrative practice of governance in democratic South Africa. The thesis draws together trends across a number of areas and presents a composite picture of the current status of government, comparing the constitutional vision for the division of powers between the spheres of government with current practice. In so doing, it aims to identify the manner in which the legislature, executive and judiciary envisage the constitutional division of powers; the extent to which the different approaches adopted by each branch cohere or conflict with one another and the manner in which they have been implemented over the past twenty years. In addition, the thesis also examines possible reasons for the challenges identified in the implementation process before concluding by suggesting interventions which could improve the efficiency and efficacy of current state administration.
  • Thumbnail Image
    Item
    The rule of law, the principle of legality and the test for rationality: a critical analysis of the South African jurisprudence in the light of the separation of powers.
    (2016) Mzolo, Nkosinathi.; Freedman, David Warren.
    Over the past twenty (20) years the South African jurisprudence has been shaped by numerous factors that emanate primarily from the interpretation of the Constitution. As a result the study, knowledge and philosophy of law has witnessed vital developments which at some point seem to cause confusions in the legal fraternity. Among other confusions that exist is what constitutes “rationality” in law, what factors are relevant in defining rationality, how has rationality been defined and how has it been applied? The thesis explores various instances where our courts particularly the Constitutional Courts and the Supreme Court of Appeal has defined and applied the rationality test when testing for the exercise of public power by the public functionaries. To begin with, our courts have held that rationality is a central principle under the principle of legality which is an implicit term to the study of the rule of law. The rule of law itself has been held to be an implicit term to the Constitution of the Republic of South Africa and that all actions will only be valid if they comply with the rule of law as a constitutional value thereof. However this is not to imply that other values of the constitution like transparency, openness and accountability are less important than the rule of law but most litigation has occurred under rule of law, hence why the focus of this thesis is on the rule of law. Under this legality principle, there are a lot of principles like the principle of authority but rationality appears to be the most significant and the courts have focused mostly on it. In defining what legality rationality is, our courts have pronounced that it is a legal safety-net applicable to every exercise of public power but more particularly where no constitutionally defined right has been violated, it protects individuals against the abuse of power. The courts initially envisaged a ‘poor rationality”, however when comparing how the principle has developed over years it is clear that the principle has been used variably. At some point rationality has been applied leniently while at some point more stringently without any clear guidance, which creates uncertainty as to the correct legal position. Among other considerations of the thesis includes the fact that when the rationality principle is stringently applied, it has been held to threaten the principle of the separation of powers, however when the same principle is leniently applied, it has been held to fall short of the required standards and the demands of the constitutions especially the transparent basis of the decisions. And when this principle is applied variably, it has been seen to undermine the very principle of the rule of law that it is meant to give effect to; this is because the rule of law demands that law should be static and predictable. This confusion stimulates the construction of the thesis as different developments have been formulated but most interestingly proposes the different standards that should apply to executive and legislative decisions.