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n Tydskrif vir die Suid-Afrikaanse Reg - Die bronne van die Suid-Afrikaanse sakereg en die invloed van die Grondwet van die Republiek van Suid-Afrika, 1996 op die regsontwikkeling in hierdie gebied van die privaatreg
The sources of South African property law
This contribution is based on the inaugural lecture delivered on 25 Maart 2013 on her acceptance of the exchange professorship: Zuid-Afrika - Lage Landen (België en Nederland) - 2012/2013. This initiative was introduced by the Tijdschrift voor Privaatreg in 2011 to facilitate exchange between Dutch and Afrikaans speaking legal academics.
In this article the author examines the sources of the South African property law with special reference to the influence of the Constitution of the Republic of South Africa, 1996 on these respective sources. Emphasis falls on the far-reaching influence of the constitution on the legal system with particular reference to the law of property. As an introduction noteworthy aspects of the legal system are briefly referred to. Readers are reminded of the fact that South African law is regarded as a mixed legal system with roots both in Roman-Dutch and English law. The influence of the multicultural nature of the society on the legal development is also addressed. Sections 8, 9, 25 and 26 of the constitution are highlighted as particularly significant for the development of and change in property law over the last decade.
The author deals with the sources of property law in the following order: the constitution, 1996; legislation; case law; the common law (Roman-Dutch law) or African customary law and textbooks or academic literature. Certain contentious issues in each of these sources are discussed briefly. Thereafter a few selected examples illustrate the influence of the constitution on property law.
The author calls attention to the penetrating and far-reaching influence that the constitution has had on the development of property law in South Africa. Particular emphasis falls on section 25 (the property clause) and section 26 (the housing clause), which so far have had by far the strongest influence on modern property law.
The position and disregard for Afrikaans as a developed legal language receives attention: both in legislation and in the courts Afrikaans (as well as other indigenous languages) are grossly neglected contrary to the protection afforded to all the official languages. Brief reference is made to the disturbing way in which judges have been appointed recently. The author refers to problematic aspects of applying African customary law and the role played by the Critical Legal Studies movement is noted with serious concern.
The author hails the comprehensive influence of the constitution on the law of property as a salutary one which improves the lives of all citizens. Although it protects the rights of all citizens equally, the constitution is particularly sensitive to the needs and position of the weak and vulnerable component of society, which is welcomed in view of the past. The author nevertheless cautions that despite the laudable aspirations of the constitution, the South African society is far from the perfect society envisaged by the drafters of the constitution.
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