PER: 2003 Volume 6 No 1http://hdl.handle.net/10394/19512024-03-29T00:17:25Z2024-03-29T00:17:25ZDie nasionalisering van waterregte in Suid-Afrika: ontneming of onteiening?Van der Schyff, Elmariehttp://hdl.handle.net/10394/19542016-04-28T21:45:45Z2003-01-01T00:00:00ZDie nasionalisering van waterregte in Suid-Afrika: ontneming of onteiening?
Van der Schyff, Elmarie
South Africa's water law dispensation has changed dramatically with the promulgation of the National Water Act 36 of 1998. The previous distinction between public and private water has been abolished and the Minister of Water Affairs and Forestry has been appointed to act as trustee of the nation's water resources. Through the working of section 4(4), exclusive rights of water use, which were in force before 1998, were replaced by water allowances, granted in the discretion of the relevant authority.
The key issue, which is investigated in this article, is whether the state, through the provisions of the National Water Act, expropriated vested rights in property or whether such infringement merely constituted a deprivation.
The new concept of property in terms of section 25 of the Constitution of the Republic of South Africa and the distinction between deprivation and expropriation are examined. It is indicated that the concept of property in South African law has been extended to include not only ownership but also rights in property. Existing water use rights, which were available to certain individuals in terms of the 1956 Water Act, can be classified as property.
Section 25(1) authorises the infringement of private property in certain defined instances. Despite the many academic works which define the difference between deprivation and expropriation as described in section 25(2), the Constitutional Court clarified this matter in First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Services 2002 7 BCLR 702 (CC). Expropriation is described as a sub-category of deprivation. Only when it has been established that the requirements of section 25(1) have been complied with, is the question of whether deprivation constitutes expropriation, asked.
The requirements for deprivation, expropriation and inverse condemnation are discussed with reference to applicable case law.
After the aim of the National Water Act was weighed up against the disadvantages which individuals suffer through the infringement of their vested rights, the conclusion was reached that the nation's need for sustainable water resources carries more weight than the individual's exclusive right of use of water. A constitutionally valid deprivation has thus occurred. Due to the fact that the state did not appropriate any rights in this process, the conclusion was reached that this provision does not amount to expropriation. It does however appear that the provisions of the National Water Act can give rise to inverse condemnation or constructive expropriation in specific circumstances.
In addition, three other strategies of strengthening international environmental governance should be pursued: First, the various international environmental treaty-making and treaty-implementation processes should be better harmonised or, at least, co-ordinated; in this context, UNEP is called upon to continue and intensify its efforts to enhance the synergies and linkages between multilateral environmental agreements (MEAs) with comparable areas of focus, by prompting the respective MEA secretariats to enter into appropriate co-ordination arrangements and giving them full logistic support in this respect. Second, as many non-governmental organisations (NGOs) have considerable knowledge and expertise in environmental and developmental matters, States should consider intensifying the partnership with them. States should, however, be empowered to make a selective choice among the mass of NGOs operating at international level. They should accept as partners only those NGOs which meet certain qualitative requirements. Third, as local governments are key components of national sustainable development strategies if such plans are to succeed, the existing local Agenda 21 processes should be expanded and intensified. In particular, supporting the direct engagement of local and sub-national institutions from around the world in international activities and partnerships is an important component of good international environmental governance.
2003-01-01T00:00:00ZChildren's rights in the South African ConstitutionRobinson, J Ahttp://hdl.handle.net/10394/19532019-06-24T09:20:19Z2003-01-01T00:00:00ZChildren's rights in the South African Constitution
Robinson, J A
Children were in many respects defenceless victims of discriminatory practices in ‘apartheid South Africa’. In fact, discrimination on the basis of gender, race and other inequalities were inscribed in the social fabric of the previous constitutional dispensation. The constitutional dispensation that came into effect on the 27th April 1994 was therefore designed to innovate social, political and legal structures that would be radically different from those of the country’s past history.
In this contribution the impact of the Constitution upon the rights of children are considered. In order to fathom the impact. a general overview of constitutional principles and provisions necessary for the comprehension of the rights of children is provided. Thereafter the rights of children expressly mentioned in the Constitution will be addressed. Attention is also paid to the equal protection and non-discrimination provisions of the Constitution, albeit only indirectly.
2003-01-01T00:00:00ZCulture (and religion) in constitutional adjudicationRautenbach, ChristaJansen van Rensburg, FPienaar, Gerrithttp://hdl.handle.net/10394/19522019-06-24T09:25:35Z2003-01-01T00:00:00ZCulture (and religion) in constitutional adjudication
Rautenbach, Christa; Jansen van Rensburg, F; Pienaar, Gerrit
The faculty of law of the Potchefstroom University for Christian Higher Education in corroboration with the Konrad-Adenauer-Stifttung embarked on a study on Politics, Socio-Economic Issues and Culture in Constitutional Adjudication. The aim of the project is twofold. The first aim is to analyse the influence of political, socio-economic and cultural considerations on the constitutional court’s interpretation and application of the Bill of Rights. The second aim is to develop practical guidelines (based on the findings during the analysing process) for South African courts confronted with issues of a political, socio-economic and cultural nature. This article is concerned with initiating discussions of the decisions of the constitutional court with regard to cultural and religious rights.
Before we can explore the role of political, socio-economic and cultural (and religious) rights in the decisions of the constitutional court it is important to discuss a few preliminary issues. In this article the meaning of culture and religion within the South African context receives some attention. Secondly, some preliminary comments regarding constitutional protection of culturally and religiously based rights will be made.
We are well aware that this is a daunting task, not only in view of the seemingly abysmal gap between the applicable constitutional rights and values enshrined in the 1996 Constitution that, in some instances over centuries, brought about customs and practices within “traditional” communities which, seemingly, infringe on certain constitutional values and rights.
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