This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.

Property rights are social institutions that define and delimit the range of privileges granted to individuals of specific resources, such as land and water. They are the authority to determine different forms of control over resources thus determining the use, benefits and costs resulting from resource use. That is, they clearly specify who can use the resources, who can capture the benefits from the resources, and who should incur costs of any socially harmful impact resulting from the use of a resource. In order to be efficient property rights must be clearly defined by the administering institution whether formal or informal and must be accepted, understood and respected by all the involved individuals and should be enforceable. These institutions influence the behaviour of individuals hence the impact on economic performance and development. The thesis has attempted to determine how the situation of property rights to land and water affects the development of smallholders in the Kat River Valley. Data was collected from 96 households who were selected using random sampling. To capture data, a questionnaire was administered through face-to-face interviews. Institutional analysis and ANOVA were used for descriptive analysis to describe the property rights situation, security of property rights and the impact of property rights on the development of smallholder farming. The results show that individual land rights holders have secure rights to land and water resources while communal smallholders and farmers on the invaded state land have insecure rights to land and water resources. The results from institutional analysis show that the situation of property rights negatively affects development of all smallholder farmers in the Kat River Valley. There are various institutional factors that negatively affect development of smallholder farmers in the Kat River Valley. Based on the research findings, some policy recommendations are made. These include consideration of the local context and strengthening of the protection of property rights.

The development of graffiti into an accepted art form, street art, is a cause of concern for South African property owners. The current position in South African property law regarding the original acquisition of ownership suggests that the creation of street art on movable property belonging to another could result in the transfer of ownership. Ownership of the movable may transfer via accessio to the street artist provided that the artwork changes the nature of the movable. This would occur even if the street artist does not act in good faith because bona fides is not a requirement for the original acquisition of ownership via accessio. This anomaly requires that the South African law on accession in the case of pictura be developed such that good faith be a requirement for the transfer of ownership in this format. With the development and growing popularity of the art form the likelihood of this legal anomaly is becoming a greater possibility. Indeed, the popularity of British street artist, Banksy, has provided numerous examples of contested ownership, albeit within English law. Banksy artworks are collectable and financially valuable. Consequently, not only are they desirable but many of his street artworks are considered to be examples of British cultural heritage and as such may be worthy of protection and preservation. These cases highlight the growing need in South Africa to clearly identify who South African street artworks belong to and, to identify any South African street art that warrants cultural heritage protection. The legislation regarding the protection of South African cultural heritage resources has not yet been extended to any street artworks. Yet there are examples of street art in South Africa that meet the requirements for cultural heritage status or which have the characteristics of cultural heritage resources. The extension of cultural heritage resource status to South African street artworks that are culturally significant could assist in the protection and preservation of these resources. However, the effectiveness of the cultural heritage legislation, in particular the National Heritage Resources Act 25 of 1999, is limited. There are several problematic aspects in this Act. This is of great concern as the issues effect all South Africa’s cultural heritage resources (not just street art which may qualify for such status). However, these issues could be responded to through amendments to the legislation. Significantly, the National Heritage Resources Act seeks to deprive private owners of their property as it seeks to regulate what owners can do with cultural heritage property which they own. However, as it stands there are far too many challengeable issues in this legislation to justifiably deprive this property in terms of s25 of the Constitution of the Republic of South Africa, 1996. This renders significant portions of the National Heritage Resources Act inoperable. Consequently, the amendment of this legislation is necessary to ensure the purpose of the legislation i.e. to ensure the protection and preservation of the South Africa’s cultural heritage resources through the deprivation of property rights or indeed, if necessary, through the expropriation of property. / College of Law / LL. D.

The movement of people from county to country brought about an increase in international marriages. However, South African private international law rules with regard to the proprietary consequences of marriage are not on par with their foreign counterparts. The prejudicial rule which governs proprietary consequences of marriage has raised difficulties for our courts in past and recent cases. The advent of a new constitutional dispensation in South Africa forbids discrimination based on sex, gender and marital status. Furthermore, the question is asked whether parties to a marriage with a foreign matrimonial domicile may rely on section 7(3) of the Divorce Act 70 of 1979. The classification of redistribution orders in private international law matters has given rise to uncertainty. The objectives of the study are to suggest workable alternatives to the current connecting factor for proprietary consequences of marriage in South African private international law and to investigate the availability of redistribution orders to spouses applying for divorce in South Africa. / Private Law / LL. M.

The main aim of this study is to investigate the relationship between landscape, memory and heritage. It aims to establish that landscape is not only an inseparable part of the intangible process of memory, but also the formation and perpetuation of cultural and individual identity. The composition of heritage, including the sociocultural and biophysical, is therefore a complex result of varying interactions between memory and landscape, as perceived by the living custodians. The intangible values of meaning, memory, lived experience and attachment, in relation to people's connection to locality and landscape, are traced back to the tangible fabric of place. Through means of qualitative and quantitative anthropological fieldwork methods and an extensive literature review, the sociocultural profile of the Mpondo is briefly documented. The subsequent case study explored a site in the Eastern Cape on Ngquza Hill, where the oral traditions and memories connected to the site are mapped. These elements were accessed through employing the theories of mnemotechnics. / Anthropology and Archaeology / M.A. (Anthropology)

A real security right improves a creditor’s chances of recovering a debt owed to him by the debtor. In the case of an ordinary pledge, the pledgor delivers physical control of his movable property to his creditor to serve as security for the repayment of the principal debt. The increasing value and use of movable property as an object of security coupled with technological advancement have resulted in many countries calling for legal reform of real security rights over movable property. In South Africa this led to the introduction of the Security by Means of Movable Property Act 57 of 1993 which makes provision for a pledge without possession. The Act regulates only special notarial bonds and does not apply to general notarial bonds. The real security right vests in the bondholder upon registration of the bond, provided that the movable property encumbered is described in a notarial bond in a way that makes it readily recognisable. The Act has substituted delivery with registration in the Deeds Registry. Registration of the notarial bond in the Deeds Registry is questioned as to whether it complies with the publicity principle. This is because movable property can be shifted from one place to another without any knowledge on the part of the creditor due to the inaccessible and costly registration system. The third party then receives the property subject to the real security right of the creditor. The substitution of delivery with registration is the controversial feature in this study. Linked to the legal problems regarding compliance with the publicity principle, is the description and identification requirement as provided for under the Act, the exclusion of general notarial bonds from the application of the Act, and the question of whether it is appropriate to regard special notarial bonds as pledges without possession. This study questions whether the current land registry system should be used for the registration of notarial bonds and suggests that a new system designed specifically for the registration of real security rights over movables be considered. I compare the position in the Belgian legal system as regards developments in real security rights over movables to identify possible solutions and recommendations for the South African approach. / Private Law / LL. M.

During the last two decades, there have been a number of policy and legislative changes in respect of South Africa’s intellectual property (IP) and the national system of innovation (NSI). In 2012, a Ministerial Review of the Science, Technology and Innovation (STI) landscape in South Africa made recommendations to improve the STI landscape and effectively the national system of innovation. The study provides a critical review of drafts of the national IP policy published in 2013 as well as the IP Framework released in 2016 for public comment. The review of the IP and the NSI are within the context of the National Development Plan (NDP), which outlines South Africa’s desired developmental goals. South Africa is part of the BRICS group of countries (Brazil, Russia, India, China and South Africa). The South African economy is characterised by a desire to move away from being dependent on resources and commodities, to becoming a more knowledge based and innovation driven economy. It is hoped that such a move would assist the country to address some of the social and economic development challenges facing South Africa, as captured in the NDP. South Africa has a functioning IP system, but its relationship with South Africa’s development trajectory is not established. More particularly, the extent to which the IP system relates to the innovation system and how these two systems must be aligned to enable South Africa to transition successfully from a country based on the production of primary resources and associated commodity-based industries to a viable knowledge-based economy is unclear. The Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation (WTO) provides that IP must contribute to innovation and to transfer of technology and knowledge in a manner that is conducive to social and economic welfare. Certain provisions set out the foundations of intellectual property systems within the context of each member state. This study has thus explored the complex, complementary and sometimes contested relationships between IP and innovation, with particular emphasis on the potential of an intellectual property system to stimulate innovation and foster social and economic development. The study has also analysed the interconnectivity of IP and innovation with other WTO legal instruments, taking into account South Africa’s positioning within the globalised economy and in particular the BRICS group of countries. The research involved a critical review of South Africa’s IP and innovation policies, as well as relevant legislation, instruments, infrastructure, IP and innovation landscape, and relationship with international WTO legal instruments, in addition to its performance, given the developmental priorities and the globalised economy. The research documents patenting trends by South Africans using European Patent Office (EPO), Patent Cooperation Treaty (PCT), United States Patents and Trademarks Office (USPTO) databases over the period 1996-2015. A comparative analysis of patenting trends amongst BRICS group of countries has also been documented. The study also documents new findings, observations and insights regarding South Africa’s IP and innovation systems. Some of these, particularly in relation to higher education and research institutions, are directly attributable to the Intellectual Property Rights from Publicly Financed Research and Development Act. More particularly, the public institutions are becoming relevant players in the NSI and are responsible for growth of certain technology clusters, in particular, biotechnology. At the same time, the study makes findings of a decline of private sector participation in patenting as well as R&D investment over the 20-year period. Recommendations are included regarding specific interventions to ensure coherence between the IP and innovation systems. Such coherence and alignment should strengthen the systems’ ability to stimulate innovation and foster inclusive development and competitiveness, which are relevant for addressing South Africa’s socio-economic development priorities. / Mercantile Law / LL. D.

The main aim of this study is to investigate the relationship between landscape, memory and heritage. It aims to establish that landscape is not only an inseparable part of the intangible process of memory, but also the formation and perpetuation of cultural and individual identity. The composition of heritage, including the sociocultural and biophysical, is therefore a complex result of varying interactions between memory and landscape, as perceived by the living custodians. The intangible values of meaning, memory, lived experience and attachment, in relation to people's connection to locality and landscape, are traced back to the tangible fabric of place. Through means of qualitative and quantitative anthropological fieldwork methods and an extensive literature review, the sociocultural profile of the Mpondo is briefly documented. The subsequent case study explored a site in the Eastern Cape on Ngquza Hill, where the oral traditions and memories connected to the site are mapped. These elements were accessed through employing the theories of mnemotechnics. / Anthropology and Archaeology / M.A. (Anthropology)

This research examines the legal issues surrounding killing in defence of property in three selected jurisdictions: South Africa, Cameroon and the United States. The comparative analysis illustrates that although the right to protect one’s property is universal, this defence is interpreted differently in the various jurisdictions. Another issue considered in the study is the constitutional right to life in each jurisdiction and whether or not an unlawful attack against one’s property creates a legal entitlement for the attacked party to take the life of another in defence of his or her property. Private defence of property is available when a person uses force to defend an interest in property, for example; to prevent a would-be thief from taking his own, or another’s property, to prevent someone from damaging his own or another’s property, to prevent an intruder from entering his own or another’s property. When an accused pleads private defence, his claim is that his harm-causing conduct was, in the circumstances, lawful. The reasonable use of force (short of deadly force) in the private defence of property is not disputed. However, the use of deadly force in protection of property is controversial, especially in a constitutional state such as South Africa where life should be prized above property. One should however also consider that there is a close link between the private defence of defending life and of protecting property. In many cases, an assault on property also involves a threat on life. However, there are cases of private defence of property where no threat to bodily integrity exists. These situations will be examined in all three jurisdictions and measured against the various constitutional imperatives. Conclusions and recommendations are made as regards the legal framework on the defence of property in the criminal law of the various jurisdictions. / Criminal and Procedural Law / LL. M.

Text in Afrikaans / In hierdie verhandeling ontleed ek die oproeping van ʼn verband op ʼn onroerende saak in die Suid-Afrikaanse reg. Indien ʼn verbandskuldenaar wanpresteer, kan die verbandskuldeiser sy beperkte saaklike reg afdwing deur die verband op te roep ten einde die uitstaande skuld te delg. Om dit te bereik, word die sekerheidsobjek op ʼn eksekusieverkoping te gelde gemaak, nadat die regte prosedure gevolg is. Die oproepingsproses is in die laaste dekade ingrypend verander, grotendeels as gevolg van artikel 26 van die Grondwet, 1996, en artikels 129 en 130 van die National Credit Act 34 van 2005. Die volgende stadiums in die oproepingsproses word onderskei: die voorverhoorprosedure; jurisdiksiebepaling; die hofprosedure; beslaglegging en die eksekusieverkoping. Wetgewing en regspraak het onlangs ingrypende veranderings ten aansien van die voorverhoorprosedure en die hofprosedure teweeggebring. Alhoewel die oproepingsproses tans bevredigend deur wetgewing en in die regspraak gereël word, is daar nog verontrustende aspekte van eksekusieverkopings wat die wetgewer se aandag verdien. / In this dissertation I analyse the calling up of a mortgage bond over immovable property under South-African law. If a mortgagor defaults, the mortgagee can enforce his limited real right by calling up the mortgage bond to satisfy the outstanding debt. To accomplish this, the secured property will be sold at an execution sale, after the correct procedure has been followed. Over the past decade, foreclosure proceedings have undergone significant changes, largely owing to section 26 of the Constitution, 1996, and sections 129 and 130 of the National Credit Act 34 of 2005. The following stages in the foreclosure process are identified: pre-trial debt enforcement procedure; determination of jurisdiction; court procedure; attachment and execution sale. Both the pre-trial debt enforcement procedure and the court procedure have recently been substantially amended by legislation and case law. Although legislation and case law currently regulate the foreclosure process satisfactorily, some disturbing aspects of execution sales remain and these deserve the legislator’s attention. / Private Law / LL.M.