Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120160001&lang=en vol. 19 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Remedial principles and meaningful engagement in education rights disputes</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100002&lng=en&nrm=iso&tlng=en This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies appropriate to South African constitutional law and jurisprudence. Thereafter the relevant jurisprudence is analysed and evaluated in the light of these principles. The article concludes by making proposals for the development of meaningful engagement as a participatory remedy in educational rights disputes. These proposals seek to ensure a better alignment between the meaningful engagement remedy and the four remedial principles identified. <![CDATA[<b>Constitutional values, therapeutic jurisprudence and legal education in South Africa: Shaping our legal order</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100003&lng=en&nrm=iso&tlng=en Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution. <![CDATA[<b>Concern regarding the "Debt" created by Rule 14.10.9 of the Government Employees' Pension Fund rules</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100004&lng=en&nrm=iso&tlng=en This paper highlights the prejudicial effect of the rule within the rules of the Government Employees Pension Fund (GEPF), which allows this fund to create a "divorce debt" for its member when the court has ordered that part of such a member's pension interest be paid over to his or her spouse. I argue that this debt is in fact a loan which is provided to the member, which he or she would be expected to pay when he or she exits the fund, with interest. This is despite the fact that the rules of the GEPF do not permit the granting of loans to its members. I argue that the creation of such a loan has the effect of diminishing the GEPF's member's benefits, and thus threaten his or her social security, and can lead to the member becoming unable to provide for himself or herself when he or she reaches retirement age. <![CDATA[<b>Compensation for what? An analysis of the outcome in <i>Arun</i><i> Property Development (Pty) Ltd v Cape Town City</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100005&lng=en&nrm=iso&tlng=en In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court awarded compensation for land that vested in the City of Cape Town in terms of a regulatory framework. The regulatory framework, sections 25 and 28 of the Cape Land Use Planning Ordinance of 1985 (LUPO), provides that land needed for public streets and places and indicated as such on a subdivision plan should vest in the local authority concerned, but without compensation if that land is based on the normal need of providing the particular development with such public streets and places. The appellant argued that since land in excess of the normal need also vested in the City, it had a right to be compensated for the excess land that vested in the City. The Court, overturning two Supreme Court of Appeal decisions, awarded compensation. The Court hinted that the compensation was for the expropriation of the appellant's land that was excess to the normal need. In the absence of a formal expropriation procedure, this case note investigates whether the compensation could have been awarded for statutory expropriation or constructive expropriation. Therefore, the question that is posed is whether the alleged expropriation for which the Court awarded compensation can be classified as either statutory expropriation or constructive expropriation. It is pointed out that the Court accepted that section 28 of the LUPO constitutes a development contribution for the land based on the normal need. In terms of the notion of development contributions, a developer has to donate land to the local authority concerned if that land is required to provide the particular development with public streets and places. A development contribution, as part of the administrative process of approving developments, is regulatory in nature and its validity is judged in terms of the requirements for a valid deprivation of property. It is argued that since the Court interpreted section 28 of the LUPO to provide for development contributions, the alleged expropriation cannot be classified as statutory expropriation. Statutory expropriation occurs when legislation expropriates property directly through mere promulgation. In this case, the excess land vested in the City only after an administrative action was taken to approve a subdivision plan. It is also argued that statutory expropriation cannot be recognised in South African law, due to the constitutional requirements for a valid expropriation in section 25(2) of the Constitution. <![CDATA[<b>Planning and <i>Arun's </i>(not so straight and narrow) roads</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100006&lng=en&nrm=iso&tlng=en Arun Property Development (Pty) Ltd wished to subdivide portions of the farm Langeberg 311, Durbanville. The 1988 structure plan for the area had indicated that certain roads would traverse the property. These and other roads all formed part of a new subdivision known as Sonstraal Heights. As is customary, the ownership of the roads in the subdivision vested in the municipality in terms of section 28 of the Land Use Planning Ordinance 15 of 1985 (C) (LUPO) on the date of approval of the subdivision. Central to this provision is that no compensation is payable to the developer if the provision of the public roads is based on the normal need therefor arising from the subdivision. Since the developer was of the opinion that the roads it had provided exceeded the normal need, the issue that had to be resolved was whether compensation must be paid for roads beyond what would normally be required for a subdivision. The main issue that the courts, from the Western Cape High Court to the Constitutional Court in Arun Property Development (Pty) Ltd v City of Cape Town 2015 2 SA 584 (CC), had to deal with was whether the vesting of roads beyond the normal need therefor arising from the subdivision amounted to an expropriation of land for which compensation is payable in terms of section 25(2) of the Constitution. This case note looks at the different stages of the case, and in the process highlights the historical and legislative background and the subdivision process. It shows that the vesting of the ownership of roads in the municipality is similar to the payment of a development contribution, both of which can be categorised as deprivations of property in terms of the constitutional property clause. On 1 July 2015 LUPO was effectively superseded by the new Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) and the Western Cape Land Use Planning Act 3 of 2014 (LUPA). Since SPLUMA does not and LUPA does contain a reference to the "normal needs" provision, the implications of Arun for the new legislative dispensation are addressed. <![CDATA[<b>Step-parent adoption gone wrong: <i>GT v CT </i>[2015] 3 ALL SA 631 (GJ)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812016000100007&lng=en&nrm=iso&tlng=en