This thesis argues that 1994 did not mark a point of absolute discontinuity in the history of South Africa. More specifically, it asserts that 1994 did not signal the end of segregationism; instead of democracy leading to national integration, the Bantustans are still governed and managed differently from the rest of the country. Consequently, it is no surprise that they remain mired in pervasive, debilitating poverty fifteen years after 1994. In insisting that contemporary South Africa is old (rather than new), the thesis seeks to make a contribution to political struggles that aim to bring to an end the segregationist past-in-the-present. The thesis is arranged in seven chapters. The first chapter considers the crisis that has engulfed South Africa historiography since 1994. It traces the roots of the crisis back to some of the fundamentals of the discipline of history, such as empiricism, neutrality and historicism. It suggests that the way to end the crisis, to re-assert the relevance of history, is for historians to re-invoke the practice of producing histories of the present, in an interested, deliberate manner. Chapter 2 narrows down the focus of the thesis to (past and present) property. It suggests that instead of understanding the constitutional protection of property rights and installation of a restitution process as the product of a compromise between adversarial negotiators, these outcomes are more correctly understood as emanating from consensus. The third chapter outlines the implementation of the restitution programme from 1994 to 2008. The productive value of restitution over this period is found not in what it has delivered to the claimants (supposedly the beneficiaries of the programme), but rather in its discursive effects related to citizenship in the new South Africa. Chapter 4 considers the exclusion of dispossession that was implemented in the Bantustans from the restitution programme. It argues that this decision was not an oversight on the part of the post-1994 government. Instead it was consistent with all other key policy decisions taken in the recent period. The Bantustans have been treated differently from the rest of South Africa; they have been deliberately under-developed, fabricated as welfare zones, and subjected to arbitrary customary rule. Whereas Chapters 2 to 4 look at the production of historical truth on the side of domination, Chapter 6 and 7 consider production on the side of resistance. Specifically, they describe and analyse the attempts of an NGO to establish the truths of betterment as dispossession, and post-1994 prejudice against the victims of betterment dispossession. They serve as case studies of third party-led processes that seek to produce truth-effects from within a prevailing truth regime. The final chapter attempts to bring many of the threads that weave through the thesis together, by means of a critical consideration of human rights discourse. The chapter calls on intellectuals to establish truths in relation to the history of ongoing human wrongs in South Africa (as opposed to the rainbow narrative of human rights) Finally, the thesis includes a postscript, comprising technical summaries of each of the chapters.

Scholarly and public analyses of state-community conflict in resource-rich communities, especially in Nigeria, often portray the compensational practices of the state and extractive enterprises as unjust and unsustainable. According to this view, at least three issues foreground the “unjustness”, namely: a) Inadequate compensation of land owners when land is expropriated or degraded in the process of natural resource exploration and production; b) inadequate periodic rents paid by extractive firms to land owners; and c) lack of, or inadequate socio-economic infrastructure in the host communities of extractive operations. Most analysts have therefore argued for a revamp of the compensation system and have presented the inadequacy of compensation as the underlying cause of conflict in Nigeria‟s mining communities (see Frynas, 2000b:208; Okoji, 2002:205). This thesis subjects the compensation discourse to a closer examination, especially against the backdrop of underdevelopment, pervasive poverty, environmental damage and continuing corporate-community conflict in Nigeria‟s resource-rich rural communities. The main argument is that, because of some of its underlying neoliberal assumptions, much of the compensation discourse is flawed – which is why the discourse obscures the true character of state-community and corporate-community conflict. This more so, because the discourse relies mainly on post-colonial (that is, post-1960) experiences and contemporary advocacy literature, ignores the interplay between history and contemporary developments in state-community relations, and treats compensation as an independent variable. Drawing on the concept of collective memory, and utilising historical, ethnographic and survey data from two of Nigeria‟s oldest petroleum and coal-mining communities, the thesis examines how the evolution of the Nigerian state and collective memory about aspects of that evolution have shaped state-community relations in the extractive sector. It situates state- iii community resource-related conflict within the wider socio-historical matrix of state and community contestations for ecological and natural resource sovereignty. The key finding of the thesis is that within the context of socio-ecological rights, compensation demands by local communities are textured. In the case of the communities selected for the study, such demands are often made outside, rather than within, local ethnographic ideas of “justness” and “fairness”. Hence, land-related grievances associated with natural resource extraction persist, regardless of whether or not local demands for compensation are “adequately” met by the state and extractive corporations. The thesis enriches and extends our understanding of natural resource conflict by privileging both the sociological and historical contexts of the conflict and raising questions about the dominance the state enjoys over local communities and indigenous ecological spaces.

In this article, the issue around abandonment in judicial proceedings (Procedural abandonment) related with the imprescriptible pretensions will be analyzed, with a special mention to those relative to the right to property. The issue discussed in the National Jurisdictional Plenary of Civil Law and Civil Procedure of 2016 will be criticized. The true issue to be solved is revealed, it’s the one related to the imprescriptible pretensions as case of inappropriateness of abandonment. It raises reasons that put in question the normative provision that links the procedural abandonment with those pretensions. Precisely because of the lack of strong arguments to justify the relation, a necessary legislative amendment is proposed. / En el presente artículo se analiza el problema del abandono en los procesos judiciales relacionados con las pretensiones imprescriptibles, con una especial mención de aquellas relativas al derecho de propiedad. Se critica la cuestión analizada en el Pleno Jurisdiccional Nacional Civil y Procesal Civil de 2016 sobre el particular. Se pone de manifiesto que la verdadera cuestión a resolverse es la referida a las pretensiones imprescriptibles como supuestos de improcedencia de abandono. Se expone razones que ponen en entredicho la disposición normativa que vincula el abandono procesal con dichas pretensiones. Justamente por la falta de argumentos fuertes que justifiquen tal relación, se propone (delege ferenda) su necesaria enmienda legislativa.

Secure property rights are a major predictor of economic growth, yet property rights in much of the world are a function of political power. Those with political connections have privileged access to state institutions, benefit from preferential contract enforcement, and face fewer risks of expropriation in the private sector. This dissertation examines how consumers and firms navigate the complex interaction between formal and informal institutions in these environments of selectively enforced rule of law. I use original experimental data from Senegal, a state that epitomizes political property rights. In Paper 1, I argue that political connections produce moral hazard in exchange and introduce biases in judicial enforcement. I present evidence from a field experiment in which I created and operated a sales company, randomizing political connections and formal contracts during transactions. The results show that asymmetric political connections decrease buyers’ propensities to trade and that formal contracts only increase exchange among connected buyers. This work challenges conventional wisdom and extant literature on the value of political connections and formal contracts in the private sectors of developing countries. Paper 2 examines how political connections and formal contracts, among other state and nonstate influences, affect the behavior of firms under selective rule of law. To illustrate the complicated decision calculus that firms face when social, formal, and political factors all motivate exchange, I implemented a conjoint experiment with 2,389 firm managers. The results show that firms avoid deals with partners that have low-to-mid-level political connections, yet seek out deals with the most highly connected firms—despite believing they are more likely to breach contracts. These results demonstrate the countervailing effects of political connections and suggest why consumers and firms may react to them differently. Finally, Paper 3 asks how firms enforce their property rights when deals go astray. I argue that contract formality can shape firms’ property security strategies and demand for rule of law, and test this using evidence from a survey experiment administered to firms in both the formal and informal economies. I present descriptive evidence that enforcement strategies differ by firm formality status and political connections. The experimental findings show that while formal contracts increase the use of legal enforcement institutions, they also widen the enforcement gap between formal and informal firms. Together, these papers present theory and evidence of politically determined economic behavior under selective rule of law. The results imply that political connections are a form of rent-seeking that can suppress overall trade and produce market inefficiencies. Under these conditions, state institutions may unintentionally exacerbate political and economic inequalities.

Indigenous Peoples' Land Rights in Latin America Indigenous peoples' cultures are known for their collective, spiritual, intergenerational relationship to their ancestral lands. Indigenous peoples not only depend on their territories with their subsistence but also with the preservation of their distinct cultures. Lands are, however, a significant factor in the vast human rights violations to which they subject. They are often faced with the dispossession of their traditional lands and the disruption of the ecological integrity of their territories. This also affects their traditional way of life and leads to the loss of their cultures. From the 1980s, indigenous peoples have started reclaiming their rights, which has also been reflected in their position under international law. In 1989, the International Labour Organisation Convention No. 169, the Indigenous and Tribal Peoples Convention was adopted. This Convention anchored significantly higher standards of protection of indigenous peoples' rights to their lands. Above all, it abandoned the patriarchal approach of the International Labour Organisation's Convention No. 107, the Indigenous and Tribal Populations Convention. Convention No. 169, moreover, addresses indigenous peoples as 'peoples' rather than 'populations', as was the case in its...

Thesis (LLD)--Stellenbosch University, 2015 / ENGLISH ABSTRACT : Section 25 of the South African Constitution authorises and sets the limits for two forms of legitimate regulatory interference with property, namely deprivation and expropriation. The focus of this dissertation is on the requirement in section 25(1) that no law may authorise arbitrary deprivation of property. According to the Constitutional Court, deprivation is arbitrary when there is insufficient reason for it. The Court listed a number of factors to consider in determining whether there is a sufficient relationship between the purpose to be achieved by deprivation and the regulatory method chosen to achieve it. The outcome of the arbitrariness question depends on the level of scrutiny applied in a particular case. The level of scrutiny ranges from rationality review to proportionality review. Deprivation that results in an excessively harsh regulatory burden for one or a small group of property owners will probably be substantively arbitrary and in conflict with section 25(1). Courts generally declare unconstitutional regulatory interferences with property rights invalid. However, invalidating legitimate regulatory measures that are otherwise lawful purely because they impose a harsh and excessive burden on some property owners may not always be justified if the regulatory measure fulfils an important regulatory purpose. Invalidating excessive regulatory measures may in some instances also be meaningless and may not constitute appropriate relief in vindicating the affected rights. The purpose of this dissertation is to investigate the appropriateness of alternative solutions to invalidating otherwise lawful and legitimate but excessive regulatory deprivations of property. The goal is to identify remedies that allow courts to uphold the regulatory measure and simultaneously balance out the excessive regulatory burden it imposes on property owners. One alternative solution is to transform the excessive regulatory measure into expropriation and require the state to pay compensation to the affected owner. This approach is referred to as constructive expropriation. However, in view of the Constitutional Court’s approach to and the wording of section 25 it seems unlikely that it will adopt constructive expropriation as a solution. Another alternative solution is for the legislature to include a statutory provision for compensation in the authorising statute. Examples from German, French, Dutch and Belgian law show that this approach balances out the excessive regulatory burden and allows courts to uphold the otherwise lawful and legitimate but excessive regulatory statute without judicially transforming the deprivation into expropriation. An overview of South African law indicates that there is legislation that includes non-expropriatory compensation provisions. In cases where the regulatory statute does not contain a compensation provision, the courts might consider reading such a duty to pay compensation into the legislation or awarding constitutional damages. In conclusion, it is possible for the state to deprive owners of property in a manner that may result in an excessive regulatory burden being suffered by one or a small group of property owners if the regulatory purpose is necessary in the public interest, provided that the legislature explicitly or implicitly provides for non-expropriatory compensation in the regulatory statute. / AFRIKAANSE OPSOMMING : Artikel 25 van die Suid Afrikaanse Grondwet magtig en stel grense daar vir twee regmatige vorme van regulerende staatsinmenging met eiendom, naamlik ontneming en onteiening. Die fokus van hierdie proefskrif is op die vereiste in artikel 25(1) dat geen wet arbitrêre ontneming van eiendom mag toelaat nie. Volgens die Grondwetlike Hof is ʼn ontneming arbitrêr as daar nie ʼn voldoende rede daarvoor is nie. Die Hof het faktore gelys wat oorweeg moet word om te bepaal of daar ʼn voldoende verhouding bestaan tussen die doel wat die staat met ontneming van eiendom nastreef en die regulerende maatreël wat vir die doel gebruik word. Die uitkoms van die toets vir arbitrêre ontneming hang af van die hersieningsstandaard wat die howe in ʼn spesifieke geval gebruik. Die standaard wissel van ʼn redelikheidstoets tot ʼn proporsionaliteitstoets. ʼn Ontneming wat ʼn oormatige swaar las op een of ʼn beperkte groep eienaars plaas sal waarskynlik arbitrêr en teenstrydig met artikel 25(1) wees. Die howe se benadering is om ongrondwetlike ontnemings van eiendom ongeldig te verklaar, maar dit is nie altyd geregverdig om toelaatbare en andersins regmatige ontnemings wat ʼn oormatige las op sommige eienaars plaas ongeldig te verklaar nie. Die ongeldigverklaring van wetgewing wat ʼn oormatige ontneming magtig mag soms ook nutteloos wees en nie ʼn gepaste remedie wees om die eienaar se regte te herstel nie. Die doel van hierdie proefskrif is om die geskiktheid van alternatiewe oplossings tot die ongeldigverklaring van andersins regmatige maar oormatige ontnemings van eiendom te ondersoek Die doel is om remedies te identifiseer wat die howe toelaat om regulerende ontnemings in stand te hou en terselfdertyd die oormatige las op enkele eienaars uit te balanseer. Een alternatiewe oplossing is om die oormatige ontneming te omskep in onteiening en die staat sodoende te verplig om aan die eienaar vergoeding te betaal. Hierdie benadering staan bekend as konstruktiewe onteiening. Gegewe die Grondwetlike Hof se benadering tot en die bewoording van artikel 25 is dit onwaarskynlik dat die howe konstruktiewe ontneming as ʼn oplossing sal aanvaar. ʼn Ander alternatiewe oplossing is vir die wetgewer om ʼn statutêre bepaling vir vergoeding in die magtigende wetgewing in te voeg. Voorbeelde uit die Duitse, Franse, Nederlandse en Belgiese reg toon aan dat hierdie benadering ʼn oormatige las kan uitbalanseer en die howe toelaat om die andersins geldige en regmatige ontneming in stand te hou sonder om dit in onteiening te omskep. ʼn Oorsig van Suid Afrikaanse reg dui aan dat daar wetgewing bestaan wat wel voorsiening maak vir sodanige vergoeding. In gevalle waar die magtigende wetgewing nie vergoeding voorsien nie kan die howe oorweeg om ʼn vergoedingsplig in die wet in te lees of om grondwetlike vergoeding toe te ken. Hierdie proefskrif kom tot die gevolgtrekking dat dit grondwetlik moontlik is vir die staat om eienaars van eiendom te ontneem op ʼn wyse wat soms daartoe kan lei dat enkele eienaars ʼn oormatige swaar las moet dra, mits die ontneming ʼn belangrike openbare doel dien en die wetgewer uitdruklik of implisiet voorsiening maak vir vergoeding.

Thesis (MBA)--Stellenbosch University, 2014. / ENGLISH ABSTRACT: Women’s rights to property have still not been recognised in many countries as a basic individual right. Furthermore, women have often been excluded in the policies that govern land reform, that is, the economic restructuring programmes and land distribution policies. It is important to understand how women's rights in and access to land are being addressed, and the ways in which institutional reforms have benefited or disadvantaged women, given the importance of women as agricultural producers in sub-Saharan Africa, as well as the commitment to gender equality adopted by many governments. The determination of the criteria used to target land beneficiaries for land reform in South Africa is largely unclear and undocumented. Furthermore, there is a limited focus in existing literature on the actual impact of land reform on its beneficiaries. Land reform in South Africa is only benefiting a small proportion of the population. The findings of this research also indicate that there is a conscious attempt by the state to address racial injustices of Apartheid, with the majority of recipients of land in South Africa being African/black, and Coloureds following closely. Furthermore, the beneficiaries of land appear to be largely uneducated and unmarried. The research indicates that women in South Africa have equal, if not more opportunity than men to gain access to land through land reform. However, it does appear that males are heading most of the households with access to land through land reform and women in male-headed households have more access to land through land reform than those in female-headed households. This suggests that unmarried women are still at a disadvantage for accessing land through land reform, which further validates the findings of existing literature that customary practices may still be prevalent in South Africa and women’s primary access to land is through marriage. The findings of the research also indicate that generally people with access to land through land reform are more likely to have better household welfare than those with no access to land through land reform. Therefore, with only 2.5 per cent of the population accessing land, there is a significant limitation on the number of households whose welfare can be improved by land reform. The results also indicate that males without access to land have better household welfare than females without access to land therefore implying that women are more vulnerable without land access and they are more likely to face poverty when they are not afforded the opportunity to access land through land reform. Furthermore, it appears that females with access to land have better household welfare than males with access to land, which implies that females are an essential contributor to household welfare, more so than their male counter parts. Similar to existing literature, these findings further validate the need for the state to address gender inequality in land reform and ensure that women are included in the process. Nevertheless, with the majority of the land beneficiaries in this research being female, household welfare in South Africa is expected to improve in the future due to land reform.

Thesis Purposeful Categorization of Land as an Interference with the Right to Property presents an analysis of the institute of purposeful categorization of land and its specifics on a background of a theoretical thought about the right to property, the right to favorable environment and the collision of two constitutionally guaranteed rights. The purpose of this thesis is to assess current legislation of purposeful categorization of land, including the instruments that are used in relation to it, and to, based on the assessment, identify problematic issues of the legislation and asses the limitation of right to property that the individual instruments related to the institute create. Powered by TCPDF (www.tcpdf.org)

A research paper presented in partial fulfillment of the requirements for the Master of Arts (MA) Human Rights, Witwatersrand University, South Africa 16 February 2015 / The research looks at the coordination of land policy with population growth and biodiversity loss as a means through which economic, social and cultural rights may be achieved. The argument is made that poor coordination of land policy with social and environmental systems may perpetuate the circumstances that drive poverty in Africa. This given the fact that land policy is a public policy that may challenge the legitimacy of economic, social and cultural rights when not properly coordinated with social and environmental systems. The research questions what considerations are taken into account when determining land policy that reflects the economic, social and cultural needs of the people within a respective State. Given clearly identified dependencies on land for development by the majority of the African population, the research aims to address how land policy may be reformed in order to take on a multilateral perspective regarding coordination, as opposed to the current unilateral perspective that stays within the realm of land administration and commoditization of land. The hypothesis of the paper assumes that current land policies in Africa challenge the legitimacy of economic, social and cultural rights since coordinated with the systems of population growth and biodiversity loss as representatives of social and environmental sectors that most influence poverty are non-existent. The research focuses on the Democratic Republic of Congo and the Kingdom of Lesotho as comparative regions where; regardless of the differing characteristics of both regions, population growth and biodiversity loss prove to be common factors that influence society’s experience of poverty. The paper makes use of structural functionalism and conflict theory as a framework for analysis. Finally, the paper makes suggestions for further study into multilateral land policy reform as a contributing factor to the achievement of human rights. Key Words: Biodiversity Loss, Child Mortality, Corruption, DRC, Economic Social and Cultural Rights, Environmental Services, Food Security, Health, Housing, ICESCR, Land Policy, Land Tenure, Lesotho, Population Growth, World Bank

De inegável relevância na vida humana, a posse se configura como um dos temas mais controvertidos no âmbito do Direito Civil. Em todos os seus contornos e características, incluindo sua natureza jurídica, terminologia, efeitos e classificações, observamos um debate acirrado e polêmico a seu respeito, o que demonstra o firme interesse dos estudiosos sobre a possessio através dos séculos. Ademais, compete ao aplicador do Direito compreender o fenômeno possessório a partir das premissas e valores constitucionais fundamentais, em especial o princípio da dignidade da pessoa humana, levando em consideração as mutações sociais e a realidade dos fatos, para que seja possível extrair do ordenamento caminhos efetivos à concretização de uma sociedade justa e solidária, a fim de erradicar a pobreza e diminuir as desigualdades sociais. Neste contexto, de forma prospectiva e adequando os conceitos civilistas à Carta da República, defendemos a aplicação do artigo 1276 do Código Civil também em benefício do ocupante qualificado de imóvel abandonado, de modo a consolidar o domínio em seu favor no mesmo triênio conferido à Administração Pública, garantindo-se então aos menos favorecidos o legítimo acesso à moradia e ao trabalho. Na medida em que o ser humano se constitui no foco de atenção, preocupação e proteção do ordenamento jurídico acreditamos que as exegeses normativas devem concretizar o disposto no artigo 1, inciso III, da Constituição da República, razão pela qual a posse de outrem exercida ininterruptamente sobre bem abandonado merece funcionar como forma de aquisição originária da propriedade imóvel privada no lapso de tempo estatuído no artigo 1276 do Código Civil. / Having undeniable relevance in human life, possession configures as one of the most contentious issues within Civil law. We observe a strained and controversial debate over all of its contours and features, including legal nature, terminology, effects and ratings. That shows scholars strong interest on possession through the centuries. Besides, Law enforcers should understand possessory phenomena taking from the viewpoint of the assumptions and fundamental constitutional values, specially the principle of human dignity, taking into consideration the social changes and the reality of the facts, so as to extract from the Law effective paths to achieving a fair and caring society, aiming at erradicating poverty and reducing social inequality. In this context, prospectively adapting the civilists concepts to the Charter of the Republic, we support the application of the article 1.276 of the Civil Code also to the qualified occupants of the abandoned property, in order to consolidate the domain on their behalf in the same triennium conferred to the public administration, ensuring to disadvantaged people the legitimate access to housing and employment. To the extent that human beings are the focus of attention, concern and protection of the legal system, we believe that normative interpretations must implement the provisions set down in Article 1, section III of the Constitution. Thats why third party possession exercised uninterruptedly over abandoned property deserves recgnition as a form of original acquisition of private property in the lapse of time established in Article 1276 of the Civil Code.