Gaopalelwe Mathiba

The persistence of intense conflicts over land belonging to indigenous communities is a pressing issue in South Africa. This would resonate even more with the lived experiences of mine communities that are often having to grapple with the collateral socio-economic hardships and impoverishment effects. Matters can get even worse when the State has weak legal and institutional frameworks to regulate the use and possession of such highly contested lands. This paper explores the principle of free, prior and informed consent (fpic); its relevance and significance to South African extractive sector; its possible bottlenecks and implementation challenges; and suggestions for practical interventions and policy advances to facilitate its incorporation into law and policy. Displacement is the limited context within which this exploration is undertaken. The paper argues that the fpic – as an envisaged future for the country’s extractive policy – is more desirable than a mere duty to consult as...

Abstract: The main societal challenge which causes instability in most of the rural demarcated areas is the vast majority of black people who live under insecure arrangements on a privately-owned piece of land belonging to private individuals

The persistence of corruption in post-apartheid South Africa and the failure to control it adequately pose a significant threat to the country’s transitional justice project and transformation imperatives. This article provides a detailed account of the depth and impact of corruption in land administration and governance in South Africa. It relies on the documented evidence of corruption scandals to establish the emerging trends, scope and impact of land-related corruption. The article is premised on the notion that corruption (which has become an intrinsic political norm in South Africa) not only impedes development and exacerbates rife inequalities in land ownership and access as a result of the apartheid regime, but also strangles the aims and objectives of transitional justice, which are to alleviate those inequalities. A further premise is that land-related corruption is a direct manifestation of untrammeled political power, patronage and impunity. The article problematises the...

Theological education is in crisis having lost an important dimension with its main focus on quality academics often abstracted from real life. This study aimed to propose that the formation of spirituality is fundamental to theological education and that theological education should be a holistic formation. The setting of this study is re-imaging theological education in the Dutch Reformed Church (DRC), a denomination in the process of missional transformation, but it is also applicable to theological education in general. This study focused on the relation between theology and spirituality, the significance of missional spirituality in theological education and a probable model for the formation of a missional spirituality. The study found that theology and spirituality are interdependent, and theological education should thus focus on all the different areas of learning and formation, that is, minimum knowledge base, pass-on-able habits and skills, and attitudes and beliefs. Theo...

This paper seeks to traverse what could possibly, by logical inference from historical events, be the position of traditional leaders on the question of land expropriation without compensation. Alternatively put, where the land question is so real and kicking, one ought to ask: what is the position and role of traditional leadership in constructing a systematic approach towards resolving a formidable issue of land expropriation without compensation? Are they in support of OR against land expropriation without compensation?

This article discusses the landmark judgment handed down by the Constitutional Court on 17 March 2017 in the constitutional quandary in Black Sash Trust v Minister of Social Development and Others. This judgment has serious consequences relating to the calamitous conduct and indiscretions of the Minister of Social Development, Bathabile Dlamini, for disdaining her constitutionally entrenched obligations and for the failure to meet a series of deadlines and directives from the
Constitutional Court. These enjoined both the Minister and South African
Social Security Agency (SASSA) to file the founding affidavits explaining the reason for the delays. Furthermore, the article unpacks the special cost order of de bonis propris, which is granted on the basis of professional negligence, in this case being administrative misconduct on the side of the Minister.

This article critically examines and discusses the Constitutional Court judgment handed down on 31 March 2016 in the cases of Economic Freedom Fighters v Speaker of the National Assembly and Others and Democratic Alliance v Speaker of the National Assembly and Others (‘applicants’); Cases CCT 143/15 and CCT 171/15. The ruling (‘the Nkandla judgment’) is a unanimous decision of the Constitutional Court and it was meticulously penned down by Chief Justice Mogoeng Mogoeng. The Nkandla judgment is a historic and landmark finding against President Jacob Gedleyihlekisa Zuma and the National Assembly for violating the
Constitution of the Republic of South Africa, 1996 and ignoring the remedial action outlined by the Public Protector which enjoined the President to pay a reasonable percentage of the costs of the non-security features at his Nkandla private residence in KwaZuluNatal
province.

A few decades ago, it might have been fair to argue that because mining activity is intrinsic to the country’s economic growth and development, then everything else negative about mining should just be excused as a ‘necessary evil’ or ‘acceptable collateral damage’. But not now. One of the negative impacts of mining activity is displacement of people. Gaining access to a mineral resource requires displacing local communities to make way for mining operations. This phenomenon is known as mining-induced displacement. In South Africa, Ghana and elsewhere, mining-induced displacements often result in the loss and damage of both tangible and non-tangible assets belonging to the displaced persons. These include homes, livestock, valuable resources, cultural sites, productive lands, social structures, tenure security over traditional lands and livelihoods. With mining-induced displacements, there is also a risk that displaced persons may find themselves homeless, marginalised, jobless and without access to their sustained livelihoods while having lost social cohesion and a sense of belonging. All these have negative bearing not only on the socio-economic realm of those affected, but cultural and
moral interests as well. Beyond all these realities, there is not much we know about how and the extent to which meaningful engagement remedy - a dynamic adjudicative strategy devised by the South African courts - may present a solution to the unresolved issues around mining-induced displacements; how the courts have protected the vulnerable against evictions through this remedy; and how such protection could potentially be extrapolated to cover mine-affected communities against displacements in this context.

In this study, the researcher demystifies the stark conflict that exists between two constitutional rights, namely; the right to property (section 25) and the right of access to adequate housing (section 26). The conflict stems mainly from the apartheid system where forced and illegal evictions were so rampant and normatively institutionalised. However, with the advent of democracy, a great deal of transformative commitment ensued. Be that as it may, this mini-dissertation argues that an alarming number of reported illegal evictions in South Africa is so severe to an extent that it thwart and poses a serious threat towards a smooth course of transformation, let alone constitutional democracy. In essence, the conflict comes into fore in the following sense. On the one hand, section 25 guarantees everyone a right to property, which further entails that no one shall arbitrarily be deprived of ownership rights over a certain object/property rightfully belonging to him/her. In other words, the rightful owner of a property is protected from an unlawful interference with his/her ownership rights by either a third party (in this context, an illegal occupant) or the state. On the other, section 26 affords everyone a right of access to adequate housing, which seeks to guard against homelessness and possibly degradation of human dignity.

In practice, these two rights are often invoked simultaneously in eviction cases, where the owner of the unlawfully occupied property would rely on section 25, whilst the illegal occupant facing eviction order would rely on section 26.

This study will further traverse legal theories with the roots from common law, legislation, judicial decisions and international instruments which have either direct or indirect effect on South African eviction legal framework. The study seeks, with an aid of the aforesaid instruments, to devise effective mechanisms that can be adopted in a quest to address the established conflict. To that end, the researcher holds a stubborn view that the right of access to adequate housing must always override ownership right, given the historical account, social and political realities associated with the former. Lastly, the study suggests, among others, the adoption of the subsidiarity principle when interpreting eviction laws as a short term recommendation, to be followed by the enactment of necessary laws that will enhance the proper enforcement and compliance, as a long term recommendation.