Browsing by Author "Viljoen, Sue-Mari"

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    Public property in South Africa: A human rights perspective
    (Pretoria University Law Press, 2024) Viljoen, Sue-Mari
    This article reviews public property and the distinct role of the state as public land owner within a rich human rights framework. To critically rethink the significance and purpose of this understudied legal subject, foundational observations are shared in the article. From a conceptual perspective, a distinction is drawn between common property that is openly accessible to all, and public property that is exclusively managed by the state for specific governmental purposes. Characteristically, the article suggests that these are two vastly divergent types of property that serve distinct aims; they are also subject to separate regulatory frameworks. The notion and communal significance of common property is unpacked with reference to the use of such property in the city of Cape Town to engage with some theoretical concerns dealing with the gradual degeneration of the public sphere. In the context of public property that is exclusively used and managed by the South African government, the article submits that the accustomed private property discourse is ill-suited to uncover and explore the nature, character, as well as the rights and interests of the state as public land owner. Instead, public land ownership should be approached and repurposed in line with constitutional commitments expressed in relation to property.
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    Regulating public property: the account of the homeless
    (SAGE Publications Ltd, 2024) Viljoen, Sue-Mari
    A global socio-economic problem concerns the unlawful occupation of public spaces. At a time when states are more inclined to adopt welfare-orientated, inclusive social policies, property rules continue to forbid the homeless from exercising those activities that should ideally be done in private. The city of Cape Town serves as an interesting case study to critically reflect on social policies and laws that regulate the use of public property when rough sleeping is not only excessive, but perhaps even normatively accepted. The article reflects on the social dilemma of an emerging conflict between property rules (specifically antisocial behavior laws) and what has become normatively conventional in the streets, sidewalks, and public parks of the city. Antisocial behavior laws are enforced irregularly as the homeless are informally pardoned therefrom; this can lead to civic hostility and more social violations. The regulatory framework pertaining to street people is also analyzed considering the constitutional directive to distribute land/dwellings. Property is inaccessible for the most destitute - the centrality of property is overlooked in the state's pursuit to not only provide access, but also enable the vulnerable to live dignified, self-sustaining lives. For the street population, the freedom to perform every-day acts is socially controlled by the property system to that of state forbearance, shaped by an indefinite norms-based understanding of where certain activities are considered reasonable. This is a unsustainable, inhumane practice that prejudices the entire community and the urban environment.
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    The South African redistribution imperative: Incongruities in theory and practice
    (Cambridge University Press, 2021) Viljoen, Sue-Mari
    It has partly been assumed that the constitutional obligation to pay compensation for expropriations is to blame for the slow pace at which land has been redistributed in South Africa. However, this assumption requires careful analysis and reflection, with reference to the imperfections of the policies and laws that set out to address landlessness, as well as the underlying theoretical approach to economic justice. This article questions the purpose for which land reform beneficiaries acquire land, with reference to the role that property should ideally fulfil for the landless. The article makes a number of observations to cast light on why the redistribution of land has been alarmingly slow, where inconsistencies and loopholes exist in the programme, and whether expropriations for nil compensation will make any difference in remedying existing failures in the redistribution programme.
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    A Systemically Correct Approach in State Evictions
    (Juta, 2020) Viljoen, Sue-Mari
    Evictions at the hand of the state have been litigated and adjudicated with reference to section 26(3) of the Constitution of the Republic of South Africa (“Constitution”) and section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”); administrative law principles have not featured to determine the substantive fairness of such decisions. It is argued that the courts’ methodological approach in these cases has been systemically incoherent. The application of administrative law principles can arguably complement this area of law if proportionality is incorporated as the requisite standard for reasonableness. A proportionality analysis not only requires a delicate balance between the eviction of unlawful occupiers and the objective of the state’s action, but also a clear understanding of the impact of such an order. From a methodological perspective, it is argued on the basis of the first subsidiary principle that a) administrative law should find application in evictions at the hand of the state; b) the courts are required to first interpret legislation that has been enacted to give effect to constitutional rights to establish whether an eviction order should be granted or not; and c) the proportionality requirement in terms of administrative law should bring the human factor to the forefront of a substantive fairness enquiry in the context of state evictions. http://www.jutajournals.co.za/a-systemically-correct-approach-in-state-evictions/