AFRIKAANS: In Suid-Afrika het 'n onderhandelde oorgang na demokrasie van 1992 af tot 1996 voorgekom waartydens twee grondwette deur die betrokke politieke partye onderhandel is. Die eerste bydrae in die studie is dat aangetoon word dat die Suid¬-Afrikaanse voorbeeld van die onderhandelde oorgang die siening in die literatuur ondersteun dat politieke partye 'n belangrike rol in die uitvoering van oorgangstake kan vervul indien hul oor die vermoë beskik. Die hoof vakkundige probleem wat in die studie gestel is, is of die grondwetlike onderhandelingsprosesse daarop dui of daar 'n noodwendige verhouding is tussen die verwesenliking van 'n party se standpunte in 'n grondwet, en die politieke mag waaroor 'n party beskik. 'n Analise van die standpunte van die drie grootste partye in vergelyking met die onderhandelingsresultate het getoon dat daar wel 'n verhouding bestaan tussen die verwesenliking van die hoeveelheid standpunte in 'n grondwet en die politieke mag waaroor 'n party beskik. Waar die twee hoofpartye (die ANC en die NP) ten opsigte van die 1993-Grondwet in 'n relatiewe magsewewig tot mekaar was, is 'n kompromie tussen die NP se hoofdoelwit van magsdeling en die ANC se hoofdoelwit van meerderheidsregering basies getref deurdat kernaspekte van beide hierdie hoofdoelwitte verwesenlik is. Met die 1996-Grondwet, waar die ANC oor die groter politieke mag beskik het, is die grondwetlike resultaat nader aan die hoofdoelwit van meerderheidsregering as aan magsdeling. Die IVP het aan beide onderhandelingsprosesse onttrek, maar sodoende is die invloed van die magsbalans tussen die partye op die grondwetlike resultaat nie ontduik nie. Die rede is dat dié party nie daarin geslaag het om die oorhoofse beleidsdoelwit van 'n opvallende federale bedeling wat baie gedesentraliseerd is te realiseer nie. 'n Verdere bydrae in die studie is dat aangetoon is hoe suksesvol partye tot die bereiking van 'n demokratiese ooreenkoms in Suid-Afrika bygedra het. In hierdie verband is 'n oorhoofse onderhandelingsingesteldheid met behulp van 'n raamwerk geïdentifiseer wat elke party met onderhandelinge gevolg het. 'n Party dra hiervolgens suksesvol tot die bereiking van 'n demokratiese ooreenkoms by deur 'n basiese balans te handhaaf tussen 'n samewerkende onderhandelingsingesteldheid (waardeur die onderhandelingsverhouding bevorder word) en 'n handhawende onderhandelingsingesteldheid (waardeur ondersteuners se belange bevorder word). Die ANC het ten opsigte van die 1993-Grondwet min of meer sodanige balans gehandhaaf ('n effens meer samewerkende as handhawende ingesteldheid), terwyl die klem van die Party na die verwesenliking van die belange van ondersteuners verskuif het ('n meestal handhawende ingesteldheid) met die onderhandeling van die 1996¬Grondwet. Die NP het ook ten opsigte van die 1993-Grondwet sodanige basiese balans gehandhaaf (effens meer handhawend as samewerkend), terwyl 'n ingesteldheid van meer samewerkend as handhawend ten opsigte van die daarstelling van die 1996-Grondwet openbaar is. Die IVP se onderhandelingstyl van vermyding, deurdat aan beide grondwetskrywende prosesse onttrek is, het beteken dat die Party nie 'n bewussyn openbaar het dat dit noodsaaklik is om ook toegewings te doen ten einde 'n wedersyds aanvaarbare oplossing te vind wat tot die vestiging van die demokrasie lei nie. ENGLISH: A negotiated transfer to democracy took place in South Africa from 1992 to 1996. In this period two constitutions were negotiated by the political parties concerned. The study shows, as a first contribution, that the South African example of the negotiated transfer supports the view in the literature that political parties can play an important role in the execution of tasks related to a transition, if they have the necessary capability. The main problem stated in the study is whether an analysis of the constitutional negotiation processes will show whether an inevitable relation exists between the realisation of the standpoints of a party in a constitution, and the political power of such a party. The standpoints of the three major parties compared with the negotiation results showed that there was indeed such a relation (between the realisation of the number of standpoints in a constitution and the political power of a party). The two major parties (the ANC and the NP) were in a relative balance of power with the negotiation of the 1993 Constitution, and a compromise was therefore reached between the NP's general policy goal of power sharing and the ANC's general policy goal of majority government. Core aspects of both these policy goals were realised. The ANC had the greater political power with the negotiation of the 1996 Constitution and the negotiation result was therefore closer to the policy goal of majority government than to power sharing. The IFP withdrew from both negotiation processes, but did not escape the influence of the balance of power between the parties so doing, because the general policy goal (of a strongly federal, decentralised system) were not achieved. The study further shows to what extent parties contributed successfully to the democratic agreement in South Africa. In this regard, a negotiation disposition that each party followed in negotiations was identified by means of a framework. A party contributes successfully to the realisation of a democratic agreement by achieving a basic balance between a cooperative disposition (through which the negotiation agreement is promoted) and an assertive disposition (through which the interests of supporters are promoted). The ANC managed to achieve such a basic balance regarding the 1993 Constitution (a disposition of being slightly more cooperative than assertive was identified), while the focus shifted to the realisation of the interests of supporters (a mostly assertive disposition) with the negotiation of the 1996 Constitution. The NP also achieved such a basic balance in regard to the 1993 Constitution (slightly more assertive than cooperative), while a disposition of more cooperative than assertive was shown in the realisation of the 1996 Constitution. The IFP's negotiation style of avoidance (in withdrawing from both constitution writing processes), meant that it did not reveal the consciousness that it is also necessary to make concessions in order to find a mutually acceptable solution that would lead to the establishment of democracy. / Thesis (PhD (Political Science))--University of Pretoria, 2007. / Political Sciences / unrestricted

Thesis (Ph. D.)--University of South Africa, 2002.

This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.

This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. / National Research Foundation

The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International & Indigenous Law / L.L. D. (Law)

The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International and Indigenous Law / L.L. D. (Law)

This thesis is a study of British colonial policy in southern Afiica in the 1 gill centwy. More specifically it looks at how British imperial policy, in the period 1875 to 1881, played itself out in two British colonies in southern Africa, Wlder the direction of a British imperial agent, William Owen Lanyon. It sets Lanyon in the context of the frontiers and attempts to link the histories of the people who lived there, the Africans, Boers and British settlers on the one han~ and the histories of colonial policy on the other. In doing so it also unravels the relationship between Lanyon and his superiors in London and those in southern Africa. In 1875 Owen Lanyon arrived in Griqualand West, where his brief was to help promote a confederation policy in southern Africa. Because of the discovery of diamonds some years earlier, Lanyon's administration had to take account of the rising mining industry and the aggressive new capitalist economy. He also had to deal with Griqua and Tlhaping resistance to colonialism. Lanyon was transferred to the Transvaal in 1879, where he was confronted by another community that was dissatisfied with British rule: the Transvaal Boers. Indeed, in Pretoria he was faced with an extremely difficult situation, which he handled very poorly. Boer resistance to imperial rule eventually came to a head when war broke out and Lanyon and his officials were among those besieged in Pretoria. In February 1881 imperial troops suffered defeat at the hands of Boer commandos at Majuba and Lanyon was recalled to Britain. In both colonies Lanyon was caught up in the struggle between the imperial power and the local people and, seen in a larger context, in the conflict for white control over the land and labour of Africans and that between the old pre-mineral South Africa and the new capitalist order. He made a crucial contribution to developments in the sub-continent and it is remarkable that his role in southern Africa has thus far been neglected. / History / D.Litt. et Phil. (History)

This thesis is a study of British colonial policy in southern Afiica in the 1 gill centwy. More specifically it looks at how British imperial policy, in the period 1875 to 1881, played itself out in two British colonies in southern Africa, Wlder the direction of a British imperial agent, William Owen Lanyon. It sets Lanyon in the context of the frontiers and attempts to link the histories of the people who lived there, the Africans, Boers and British settlers on the one han~ and the histories of colonial policy on the other. In doing so it also unravels the relationship between Lanyon and his superiors in London and those in southern Africa. In 1875 Owen Lanyon arrived in Griqualand West, where his brief was to help promote a confederation policy in southern Africa. Because of the discovery of diamonds some years earlier, Lanyon's administration had to take account of the rising mining industry and the aggressive new capitalist economy. He also had to deal with Griqua and Tlhaping resistance to colonialism. Lanyon was transferred to the Transvaal in 1879, where he was confronted by another community that was dissatisfied with British rule: the Transvaal Boers. Indeed, in Pretoria he was faced with an extremely difficult situation, which he handled very poorly. Boer resistance to imperial rule eventually came to a head when war broke out and Lanyon and his officials were among those besieged in Pretoria. In February 1881 imperial troops suffered defeat at the hands of Boer commandos at Majuba and Lanyon was recalled to Britain. In both colonies Lanyon was caught up in the struggle between the imperial power and the local people and, seen in a larger context, in the conflict for white control over the land and labour of Africans and that between the old pre-mineral South Africa and the new capitalist order. He made a crucial contribution to developments in the sub-continent and it is remarkable that his role in southern Africa has thus far been neglected. / History / D.Litt. et Phil. (History)