Hanri Mostert

The Unavoidable Necessity of Formalizing Condominium Ownership in China: A Pilot Study

This article identifies the problems and malfunctions of the Chinese apartment ownership regime that necessitates its formalization. The benefits of formalizing the apartment ownership, such as resolution of the social housing problem, and establishment of the mortgage-backed real estate market, are presented. Thereafter, we indicate that the success of formalizing apartment ownership in China depends on one hand on the extent to which the unique property market in China can be reconciled with acknowledged ways of dealing with apartment ownership in various other jurisdictions acting as comparative examples. On the other hand, simply grafting borrowed laws or legal institutions into a new context cannot achieve the desired effects. Legal culture matters and it cannot be downplayed in the formalizing process. Our conclusion is that the booming but immature Chinese apartment ownership market will benefit greatly if the casual link between the market economy and well-defined property rights are confirmed through legal formalization.

The distinction between deprivations and expropriations and the future of the 'doctrine' of constructive expropriation in South Africa

Abstract ‘Constructive expropriation’ refers to the protection of individual property holders against detrimental consequences of state regulation of private property in two distinct ways, by either affording compensation to the aggrieved right holder, or by striking down the imposition. Two aspects of the relevant constitutional provisions are considered in this contribution: (i) the impact of conjunctive and disjunctive readings of ss 25(1) and (2) on the issue of constructive expropriation; and (ii) the interpretative relevance of the relationship between s 25 and s 36 for constructive expropriation scenarios. Although Harksen v Lane and Steinberg v South Peninsula Municipality rely on different underlying assumptions about deprivations and expropriations, neither canpr ovide a viable basis from which to consider the idea of constructive expropriation and its relevance for the South African context. First National Bank of SA t/a Wesbank v Commissioner for the South African Revenue Service suggests that the basis for reliance on an ‘argument’ of constructive expropriation in South Africa must be sought in the criterion of excessiveness, deduced from the court’s treatment of the non-arbitrariness requirement of s 25(1). It is concluded that constructive expropriation refers merely to the phenomenon of striking down a particular measure on the basis of its excessiveness. In the jurisprudence as it stands, payment of compensation for cases of regulation that ‘go too far’ cannot be envisaged.

The Constitutional Protection and Regulation of Property and its Influence on the Reform of Private Law and Landownership in South Africa and Germany

Research Question, Terminology and Methodology * Background to the Constitutional Protection of Property in Germany and South Africa * The Constitutional Inquiry into Property Protection and its Relevance for the Existing Property Order * The Influence of Social Reform on Land Law in Germany and South Africa.

Practical Approaches to the Numerus Clausus of Land Rights: How Legal Professionals in South Africa and the Netherlands Deal with Certainty and Flexibility in Property Law

In the civil-law jurisdictions of the Netherlands and Germany, it has long been accepted that relationships in respect of property must fit particular forms, and must have predetermined content. This is referred to as the numerus clausus principle. Recent scholarship from both the common-law and civil-law worlds focuses closely on the degree of flexibility that adherence to the principle of the numerus clausus allows. The claim is that the constraints of this principle may be easily evaded with professional legal assistance through, e.g. the practice of “stacking�? or combining different types of real rights to deal with modern commercial demands. This paper adopts a comparative approach in scrutinising the role of legal professionals involved in creating and entrenching real rights (specifically in respect of land). It shows how these professionals are instrumental in managing the tension between regimentation and customisation, between certainty and practicability of real rights in respect of land, on the cusp between theory and practice. The paper focuses on the function of the Public Notary, and the Registrar of Deeds, two offices that play a crucial role in the registration of rights to land. In the process it comments on the ostensible theoretical divergences between Dutch and South African law – surprising because of the quite close links between these jurisdictions due to their conjoined legal histories – and the unexpected similarities in legal practice.

Natural Resources as “Regulated Property”: The Challenges of Resource Stewardship in South Africa

The problem with natural resources – land, minerals and water – is that they are finite, but must be shared by an ever-increasing number of users.1 The main challenge is to find equitable ways to share such resources, so that the interests of all users are served more-or-less acceptably. This challenge befalls the state: it is the institution that must manage natural resources, on behalf of all its people, determining ways of socially acceptable use. Therefore, natural resources epitomise the idea of regulated property, and the state often finds itself in the role of a steward – a custodian or public trustee – thereof. The government determines how (and how much) money is spent on the improvement of infrastructure and services, the distribution of resources, and ultimately the nature and content of water and land use and mineral exploitation.2 In South Africa, pressure to balance the use of natural resources equitably is exacerbated by the country’s mired political past, which intentionally excluded vast swathes of the population from land, minerals and water,3 rendering ownership distribution and access patterns grossly unjust.4 Since that

The ‘Thing’ Called ‘Mineral Right’: Re-Examining the Nature, Content and Scope of a Rather Confounding Concept in South African Law

The nature of a right to minerals is controversial in South Africa. With the recent coming into force of new legislation governing mineral resources, the conventional view is that there has been a drastic shift of control over the country’s mineral wealth from private individuals to the state. However, in this article, the author explains that the conceptualisation of the mineral right in South Africa has always been inconsistent and contested, at least partly due to South Africa being a mixed legal system with conflicting theoretical foundations. With reference to Underkuffler’s theoretical framework of the legitimate regulatory powers of the state over property, the author demonstrates that the orthodox view in South Africa has historically emphasised the powers of private parties over mineral resources and viewed the state’s legitimate regulatory role as limited. However, the author argues, both historically and conceptually it is more accurate to acknowledge that the state has always exercised significant control over mining in South Africa, and the right to minerals has always been a flexible one which has varied across different legislative periods. The article outlines the evolution of the mineral right in South Africa, discusses the conflicting theoretical conceptions of the right (including whether it is servitudal in nature or an independent property right) and critiques the recent judicial treatment of the right by South Africa’s highest courts. The author concludes by suggesting that if the mineral right is understood correctly, the recent legislative changes are actually far less radical than commonly thought.

Land as a "National Asset" under The Constitution: The System Change envisaged by the 2011 Green Paper on Land Policy and what This means for Property Law under The Constitution

This paper takes a close look at some of the main tenets set out in the Department of Rural Development and Land Reform’s Green Paper on Land Reform of 2011, specifically those that have a bearing on the creation of a new framework for land law. The purpose is to advance some suggestions as to how new statutory interventions can avoid being contested for being unconstitutional. The analysis focuses on the Green Paper’s notion of land as a “national asset�?, questioning the meaning and implications thereof against the debate about nationalisation of important resources. In this context, the paper is critical of the perceived tendency to introduce reforms for the mere sake of political expediency. The guidelines for state interventions with property rights that would pass constitutional muster are deduced from (mainly) the decision of First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) 768 (CC).

Trends in the South African Constitutional Court's jurisprudence on property protection and regulation

Article by Professor Hanri Mostert (Professor of Law, Stellenbosch University, South Africa) published in Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.