The introduction of the first democratic Constitution and the land reform programme in South ' Africa provided the impetus for the development of a new perception of property. In terms of the traditional private law perception property rights are reduced to abstract, scientific concepts which form part of a hierarchical system of rationally and logically related concepts and definitions, the relationships between which remain largely unaffected by social and political realities. In this view the constitutional property clause is interpreted as a guarantee of existing individual property rights against unwarranted state interference. Proponents of the traditional private law view argue that this perception of property need not be replaced by a new constitutional perception of property, because the traditional private law perception is legitimated by the fact that it developed in an uninterrupted, linear line from Roman law. It is regarded as flexible enough to adapt to new and different social and political circumstances. However, the truth is that the development of property rights was disrupted by a number of discontinuities or fundamental breaks in different periods of its development. It is argued in this thesis that the introduction of the new constitutional order in South Africa can be regarded as another of these discontinuities, and that the strict adherence to the private law perception of property may be abandoned in favour of a new debate on property where the social and political function of property is emphasised more strongly. Land reform promotes the public interest in that it ensures the equitable use, distribution and exploitation of property. In most cases the implementation of land reform necessitates the limitation of property rights. A conservative judiciary's adherence to the traditional private law perception of property may lead to a constitutional conflict between the judiciary (that aims to afford existing property rights strong constitutional protection) and the legislature (that aims to promote the public interest by implementing land reform). Such a constitutional conflict can be avoided if the South African courts adopt an approach in terms of which the social and political role and function of property in society is recognised. / Private Law / LL.D.

The conceptualist view of property is based on the conceptual system or hierarchy of rights conceived by Grotius and developed by the pandectists. It rests on the assumptions that ownership is neutral and timeless. As such it has a number of abstract, timeless and universal characteristics, namely absoluteness, uniformity and exclusivity. Combined with liberalism, this concept of property becomes the guarantee of liberty and equality. The first part of this study shows that not only are the assumptions historically unfounded, but this conceptualist view of property made liberty and equality for women, in particular, impossible. The liberal, conceptualist property concept is a modernist construct that cannot guarantee either liberty or equality. The question then becomes whether constitutionalism can do what conceptualism cannot- can die constitutional protection of property guarantee liberty and equality. The second part of this study suggests that the answer to this is an "it depends" kind of answer. It depends on the structure of a constitution, underlying philosophical, political and, above all, hermeneutics theories employed by courts. In the South African context courts need to reject the private-law conceptualist view of ownership in favour of a constitutional property concept. This last-mentioned concept should be based on the values and normative context of the 1996 constitution. As such it involves value choices and making a political stand. Courts need to abandon conceptualist frameworks and decide on the proportionality of limitations on property. The conclusion to this study suggests that a feminist understanding of human beings as socially constructed and constrained, so that democracy alone cannot provide an answer to the counter-majaritarian dilemma, is necessary far an understanding of property. The creative tension provided by the feminist conflict between a political agenda and a respect far contexts may provide a framework far adjudicating an property issues. / Private Law / LL.D.

Thesis (LLD (Public Law))—University of Stellenbosch, / In this dissertation a comparative study is made of the constitutional accommodation of the distribution of financial resources and constitutional obligations to the various spheres of government in Germany and South Africa. Both countries have decentralised or multi-level systems of government and can be classified, in terms of current studies on federalism, as integrated or cooperative federal systems. An overview of the historical developments, the political contexts, the fundamental principles and the constitutional frameworks for government in Germany and South Africa is provided as a basis for the in-depth analysis regarding the financial intergovernmental relations in these countries. This study has shown that economic theory is important in the design of decentralised systems of government and that political and socio-economic considerations, for example, the need for rebuilding Germany after World War II and the need to eliminate severe poverty in South Africa after 1994, often play a dominant role in the design and implementation of decentralised constitutional systems. The economic theory applicable to decentralised systems of government suggests a balanced approach to the distribution of financial resources and constitutional obligations with a view to obtaining the most efficient and equitable solution. In both countries the particular constitutional allocation of obligations and financial resources created a fiscal gap that required some form of revenue sharing or financial equalisation. The German financial equalisation system has been developed over fifty years and is quite complex. It attempts to balance the constitutional aim of reasonable equalisation of the financial disparity of the Länder with the financial autonomy of the Länder as required by the Basic Law. The huge financial and economic demands from the eastern Länder after unification in 1990 placed an additional burden on the available funds and on the financial equalisation system. Germany currently faces reform of its financial equalisation system and possibly also bigger constitutional reform. The South African constitutional system is only a decade old and the financial equalisation system that is less complex than the German system, is functioning reasonably well but needs time to develop to its full potential. The system may however require some adjustment in order to enhance accountability, efficiency and equity. A lack of sufficient skills and administrative capacity at municipal government level and in some provinces hampers service delivery and good governance and places additional pressure on the financial equalisation system. The Bundesverfassungsgericht and the Constitutional Court play important roles in Germany and South Africa in upholding the principle of constitutional supremacy, and make a valuable contribution to the better understanding of the constitutional systems and the further development thereof. This study has shown that clear principles in constitutional texts, for example, such as those contained in the Basic Law, guide the development of applicable financial legislation and add value to the provisions on financial equalisation and how they are implemented. These principles in the Basic Law are justiciable and give the Bundesverfassungsgericht an important tool to adjudicate the financial equalisation legislation. The study of the constitutional accommodation of the distribution of financial resources and constitutional obligations in Germany and South Africa is not an abstract academic exercise and should be seen in the particular political and socio-economic contexts within which the respective constitutions function. The need to give effect to the realisation of socio-economic rights, for example, the right of access to health services, places additional demands on the financial equalisation system. The South African society experienced a major transformation from the apartheid system to a democratic constitutional order that in itself has had a significant influence on financial intergovernmental relations. This dissertation focuses on a distinct part of constitutional law that can be described as financial constitutional law. This comparative analysis of the two countries has provided some lessons for the further development of South Africa’s young democracy, in particular the financial intergovernmental relations system.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

South African courts face a challenge in the application of intra and extra-texual aids in constitutional interpretation. Given that the 1993 and 1996 Constitutions have brought about a new era in the exercise of human rights, the challenge that the courts face is to strike a balance between individual and communitarian values. I have argued that the African concept of ubuntu which was included in the 1993 Constitution and impliedly included in the 1996 Constitution should be applied as a constitutional value and interpretive aid. This argument is fortified by the 1996 Constitution's frequent reference to human dignity, which is accorded full meaning by ubzmtu.mtu. This concept is further examined with a vie-..v to linking it vvith African jurisprudence which is characterised by the exercise of individual human rights within the context of a group. In conclusion proposals on the way forward in the application of ubuntu are / Law / LL.M.

The author explores the traditional approaches to interpretation in a constitutional democracy, with specific emphasis on Bill of Rights interpretation. The approaches adopted by the court in India and Canada, are briefly outlined with a view to gleaning from the experience of these countries, a theory which will inform a proper approach to interpretation in a South African context. He concludes that the value-based approach is most appropriate to concretise the rights entrenched in the Bill of Rights, and specifically the so-called second and third generation rights. Addressing the fear that this may lead to an undisciplined judiciary, he concludes that there are sufficient disciplinning mechanisms to ensure that the courts do not encroach upon the other branches of government. / Constitutional, International and Indigenous Law / LL.M.

Summaries in Afrikaans and English / Text in Afrikaans / Die siviele lasterreg word gekenmerk deur verdeeldheid aangaande bewyspligtigheid. 'n Unieke situasie doen horn voor: weerlegbare regsvermoedens van onregmatigheid en animus iniuriandi word opgevolg deur verskeie regsverdigingsgronde. Bykomend hiertoe stel die Grondwet die vereiste van konstitusionele regverdiging vir beperkings op fundamentele regte. 'n Oorsig oor die regspraak in sowel die voorgrondwetlike - as na-grondwetlike bedeling, dui op 'n versuim deur die howe om behoorlik aandag te skenk aan die bewyspligtigheidsgevolge van die regverskynsels wat hulself in die lasterreg voordoen. In hierdie verhandeling word bewyspligtigheid in lastersake krities ondersoek om vas te stel of dit die reg korrek weerspieel en om 'n werkbare bewyslasformule vir lasteraksies in 'n konstitusionele litigasie te vind. Daar word voorgestel dat die probleem opgelos word deur 'n tweefase-benadering: Die eiser moet in die eerste fase die omvang van sy reg bewys en dat daarop inbreuk gemaak is. In die tweede fase moet die verweerder sy regverdigingsgronde bewys, asook dat dit konstitusioneel regverdigbaar is. / The civil law of defamation is marked by discord regarding onus of proof. A unique situation evidences itself: rebuttable presumptions of law concerning unlawfulness and animus iniuriandi are followed by various grounds of justification. In addition thereto the Constitution sets the requirement of constitutional justification for limitations on fundamental rights. An overview of case law in the pre-constitutional as well as the post-constitutional dispensation, indicates a failure by the courts to pay proper attention to the evidentiary consequences of the legal phenomena found in the law of defamation. In this dissertation onus of proof in defamation cases is critically examined to ascertain whether it reflects the law correctly and to find a workable "onus of proof" -formula for defamation cases in a constitutional dispensation. It is suggested that the problem be solved by a two stage approach: in the first phase, the plaintiff must prove the extent of his right and the encroachment thereof . In the second phase the defendant must prove his grounds of justification and show that they are constitutionally justifiable. / Constitutional, International and Indigenous Law / LL.M.

The conceptualist view of property is based on the conceptual system or hierarchy of rights conceived by Grotius and developed by the pandectists. It rests on the assumptions that ownership is neutral and timeless. As such it has a number of abstract, timeless and universal characteristics, namely absoluteness, uniformity and exclusivity. Combined with liberalism, this concept of property becomes the guarantee of liberty and equality. The first part of this study shows that not only are the assumptions historically unfounded, but this conceptualist view of property made liberty and equality for women, in particular, impossible. The liberal, conceptualist property concept is a modernist construct that cannot guarantee either liberty or equality. The question then becomes whether constitutionalism can do what conceptualism cannot- can die constitutional protection of property guarantee liberty and equality. The second part of this study suggests that the answer to this is an "it depends" kind of answer. It depends on the structure of a constitution, underlying philosophical, political and, above all, hermeneutics theories employed by courts. In the South African context courts need to reject the private-law conceptualist view of ownership in favour of a constitutional property concept. This last-mentioned concept should be based on the values and normative context of the 1996 constitution. As such it involves value choices and making a political stand. Courts need to abandon conceptualist frameworks and decide on the proportionality of limitations on property. The conclusion to this study suggests that a feminist understanding of human beings as socially constructed and constrained, so that democracy alone cannot provide an answer to the counter-majaritarian dilemma, is necessary far an understanding of property. The creative tension provided by the feminist conflict between a political agenda and a respect far contexts may provide a framework far adjudicating an property issues. / Private Law / LL.D.

The introduction of the first democratic Constitution and the land reform programme in South ' Africa provided the impetus for the development of a new perception of property. In terms of the traditional private law perception property rights are reduced to abstract, scientific concepts which form part of a hierarchical system of rationally and logically related concepts and definitions, the relationships between which remain largely unaffected by social and political realities. In this view the constitutional property clause is interpreted as a guarantee of existing individual property rights against unwarranted state interference. Proponents of the traditional private law view argue that this perception of property need not be replaced by a new constitutional perception of property, because the traditional private law perception is legitimated by the fact that it developed in an uninterrupted, linear line from Roman law. It is regarded as flexible enough to adapt to new and different social and political circumstances. However, the truth is that the development of property rights was disrupted by a number of discontinuities or fundamental breaks in different periods of its development. It is argued in this thesis that the introduction of the new constitutional order in South Africa can be regarded as another of these discontinuities, and that the strict adherence to the private law perception of property may be abandoned in favour of a new debate on property where the social and political function of property is emphasised more strongly. Land reform promotes the public interest in that it ensures the equitable use, distribution and exploitation of property. In most cases the implementation of land reform necessitates the limitation of property rights. A conservative judiciary's adherence to the traditional private law perception of property may lead to a constitutional conflict between the judiciary (that aims to afford existing property rights strong constitutional protection) and the legislature (that aims to promote the public interest by implementing land reform). Such a constitutional conflict can be avoided if the South African courts adopt an approach in terms of which the social and political role and function of property in society is recognised. / Private Law / LL.D.