Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120110003&lang=en vol. 14 num. 3 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=S1727-37812011000300001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Foreword</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300002&lng=en&nrm=iso&tlng=en <![CDATA[<b>Opening address at the colloquium 'good governance in land tenure' held at Potchefstroom on 22 and 23 April 2010</b>: <b>land tenure and good governance from the perspective of international law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300003&lng=en&nrm=iso&tlng=en <![CDATA[<b>Response to Prof Thilo Marauhn's opening address on 'land tenure and good governance from the perspective of international law'</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300004&lng=en&nrm=iso&tlng=en <![CDATA[<b>Restitutionary road</b>: <b>reflecting on good governance and the role of the Land Claims Court</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300005&lng=en&nrm=iso&tlng=en Although 95% of all claims that had been submitted by 1998 have indeed been processed, a mere 49% of the land that was restored since 1994 housed successful enterprises by the end of 2010. Accordingly, sixteen years into the restitution process the statistics are rather disappointing. Restitution of land as a land reform mechanism is a unique temporal process that involves various role players. This contribution focuses on the role that the Land Claims Court has to play within the context of "good governance". In this regard the legislative and policy frameworks within which restitution and the Land Claims Court operate, are first set out after which the unique characteristics of the restitution programme are highlighted. Although the main function of the Land Claims Court is to grapple with and adjudicate on legal issues, it also has a role to play in effecting good governance. This may be done by its involvement in the legal process leading up to the finalization of claims by issuing directives, acting as a review forum and by removing land from the restitution process under section 34 of the Restitution Act. However, a more pro-active role may be played by the Court by its involvement in deciding the exact form of restitution or restoration in a particular case. In this regard the Court can find that restitution has to be conditional and that certain requirements have to be met in order for the process to be effective and successful. With reference to Baphiring Community v Uys and Others (Case number LCC 64/1998) it is clear that a pro-active approach would require the Court to engage in difficult, often conflicting, issues and to embark on in-depth investigations and analyses where necessary. <![CDATA[<b>The role of local government in evictions</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300006&lng=en&nrm=iso&tlng=en Local government occupies a unique place in the South African system of government. This is circumscribed by the Constitution which contains directives. enjoining municipalities inter alia to provide democratic and accountable government for local communities and to promote social and economic development (section 152) as well as to undertake developmentally-oriented planning (section 153). In addition local government has a specific role to play regarding access to adequate housing and, in that context, evictions. In terms of sections 25 and 26 of the Constitution as well as legislation enacted in terms of these provisions new and different procedures have been put in place to demarcate the role of municipalities in evictions. The interpretation, by the courts, of these legislative provisions, has created a framework within which municipalities must react to and deal with evictions. In terms of that framework a number of duties and responsibilities are placed on municipalities, which include that they do the following: have policies, actions and programmes in place, draw up proper housing plans, be notified of evictions, mediate and engage with all stakeholders and provide temporary and suitable alternative - accommodation of a specific standard, all of which must be consistent with principles of human dignity and be reasonable. Against this background this paper will interrogate the role of local government in evictions, concentrating on the constitutional directives for municipalities, the different eviction procedures and the duties and responsibilities of municipalities. <![CDATA[<b>Tenure security reform and electronic registration</b>: <b>exploring insights from English law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300007&lng=en&nrm=iso&tlng=en This paper examines the potential significance of updating registration practices in resolving some of the issues about tenure security in a transformative context. It deals with the importance of good governance in the context of land administration and considers its impact on intended reforms. Land registration practice as an indicator of the quality of governance is scrutinised. The debate about the kinds of interests to be served by tenure security reforms is considered. A comparative law analysis demonstrates how demands for electronification, placed on registration systems, can reshape the process of securing tenure. The paper then highlights issues for further investigation and discussion. <![CDATA[<b>Urban pro-poor registrations</b>: <b>complex-simple the Overstrand project</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300008&lng=en&nrm=iso&tlng=en Low-cost housing which has been disposed of by private owners is extremely difficult for conveyancers to register. The law as it stands is often incapable of giving effect to the business transactions of the poor, thereby creating insecurity of tenure nationwide. The Land Titles Adjustment Act 111 of 1993 is currently the only legislation capable of dealing with this impasse. The Overstrand Municipality has provided the staff and infrastructure to run a pilot project under the Act, for which it is awaiting confirmation from the Department of Rural Development and Land Reform. This article discusses the legal issues arising and the potential of such an initiative to provide consumer protection for the low-literate and other vulnerable holders of rights. <![CDATA[<b>The potential use of cellular phone technology in maintaining an up-to-date register of land transactions for the urban poor</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000300009&lng=en&nrm=iso&tlng=en This article investigates the concept of using cell-phone technology for obtaining information about unofficial (off-register) transfers in land as are commonly undertaken by the urban poor in South Africa. Since the introduction of social housing programmes in South Africa after the democratic elections in 1994, mass land distribution and housing projects have been undertaken. Formal transfer of these properties has been discouraged by policy (such as a moratorium on transfers for a period of years), and the inaccessibility of land professionals and formal processes to the poor. From the disuse of formal transfer mechanisms one can conclude that these fail, at least in part, to meet the needs of this segment of society. Cell-(mobile) phone technology penetrates urban poverty more than other interactive technologies such as the internet, largely due to the lack of access to computers and the 'digital divide'. The aim of this article is exploratory. It investigates the potential use of cell-phone technology as a means to inform authorities that a transfer of property has taken place informally or semi-formally. Such information could pave the way for a process of formal registration and hence aid the upkeep of the deeds registration system. Research into the potential use of the cell-phone as an information and communication technology (ICT) tool of land administration, particularly in the developing world, is undertaken. It is envisaged that a more detailed investigation will follow, which will include an analysis of organisational and legislative capacity. Further study in which the use of cell-phone technology in land administration is tested, taking into consideration structural/organisational factors as well as socio-economic and cultural factors and motivating factors for use, may be required.