Browsing by Author "Van Schalkwyk, Catherine"

Now showing 1 - 3 of 3
  • No Thumbnail Available
    Item
    Open Access
    Exploring the challenges of quitrent rights on land use, development and ownership in the Eastern Cape
    (2024) Malgas, Phucuka Penelope; Van Schalkwyk, Catherine
    This research examines the restrictions of the quitrent rights system and the impact thereof on land and economic development in the Eastern Cape province of South Africa. To appreciate the current challenges, one has to understand the historical development and complexities of the quitrent rights system. Many quitrent titles were surveyed in the former Transkeian and Ciskeian Territories between 1890 and 1923. Formal title deeds were registered in the Deeds Registry in respect of the affected land parcels in various categories that were either residential, arable or commonage portions. The quitrent right holders were later moved from the land into betterment schemes, and “permissions to occupy” (PTO) were allocated to them. In the process, the state ignored the existing quitrent rights and began to construct schools, hospitals, dams, nature reserves and roads over the land which had been accorded a quitrent. Even though some quitrents lapsed due to forfeiture or cancellation, most of these quitrent titles in the former Transkeian Territories are still reflected in the Deeds Registry. Until an investigation reveals that a (still registered) quitrent has lapsed, it must be regarded as valid and enforceable. In terms of the Deeds Registries Act 47 of 1937, an immovable property can only be registered against an approved Surveyor-General Diagram, as per the Land Survey Act 8 of 1997. An immovable property affected by a quitrent is not eligible for registration at the deeds office as the approved diagram of such a property is encumbered by a caveat preventing registration. Registration will only be permissible upon providing proof that compensation was paid to the quitrent holder or beneficiary. The impact on land administration is such that properties affected by the quitrent right system cannot be registered at the Deeds Office and thus cannot be disposed of nor transferred. This means no notarial lease agreements can be registered on any land affected by a quitrent for development purposes. This poses a negative impact on investment and economic development. The study investigates the challenges and implications that the quitrent rights have on land use, development and ownership. It identifies and presents possible workable solutions in resolving the challenges presented by the existence of quitrents. Finally, it determines the role that government can play in resolving the land ownership dilemma that the quitrents present
  • No Thumbnail Available
    Item
    Open Access
    The Legislative Complexities of Municipal Real Estate Transactions in the Context of Social Value Creation
    (2024) Emsley, Liezl; Van Schalkwyk, Catherine
    Legislation governing the sale and lease of immovable property by South African municipalities to third parties is extensive and multi-faceted. Different pieces of legislation are applicable, which specify several requirements to be complied with before a municipality enters into a sale or lease transaction. Compliance with some of these requirements are time-consuming and there are instances of overlap. While the requirements stipulate how a municipality should transact when undertaking immovable property transactions, consideration must also be given to overall municipal objectives and mandate, as provided for in the Constitution. The central theme of these objectives is the delivery of social value to the local community. This dissertation aims to determine to what extent legislative requirements applicable to the sale and lease of municipal immovable property to third parties support the realisation of social value objectives, as provided for in the Constitution. The study has three main objectives: a. First, to identify the legislation applicable to municipal immovable property transactions and to determine the objectives of the legislation relating to municipal immovable property transactions. b. Second, to examine the extent to which social value objectives are achieved through municipal immovable property transactions. c. Third, to investigate whether the legislation and processes relating to municipal immovable property transactions may be improved to better facilitate social value delivery. These objectives are considered by investigating and analysing the processes followed at two South African metropolitan municipalities when undertaking immovable property transactions. The study identifies and considers both the general challenges experienced by municipal officials regarding these transactions, as well as specific challenges faced in relation to the application of the legislation. The study illustrates how the legislative requirements, aimed at providing fairness and transparency, may inadvertently discourage social value creation. Recommendations are made to streamline and simplify the transaction process.
  • No Thumbnail Available
    Item
    Open Access
    The Role of the Lessor s Tacit Hypothec and Accession as Common Law Protection Measures for Landowners in Solar Energy Power Purchase Agreements
    (2023-12) Watermeyer, Peter; Van Schalkwyk, Catherine
    The demand for renewable solar energy in private businesses is becoming a key component in everyday operations given today's energy climate in South Africa. A hurdle in integrating solar energy into a private business is the capital outlay required by the landowner to install the necessary solar infrastructure. The renewable energy industry provides an alternative to private landowners, making the benefits of solar energy available without requiring any capital outlay to fund solar installations. These opportunities for private landowners are typically governed by Power Purchase Agreements (PPAs) between the landowner and the Independent Power Producer (IPP). The PPA provides the contractual relationship between the landowner and the IPP for the buying and selling of solar energy, respectively. The PPA also outlines the parameters between the landowner and the IPP specific to the site as well as the performance obligations of each party. Problems may arise if the IPP fails to comply with its performance obligations. This dissertation investigates the possibility of applying common law protection measures against the IPP, should the latter fail in specific performance obligations set out in the PPA. The study focuses specifically on two common law protection measures, namely the lessor's tacit hypothec and the law of accession. The study has the following objectives: 1. Determine the legal criteria to rely on the lessor's tacit hypothec and accession respectively; 2. Investigate how the principles of the lessor's tacit hypothec can be utilised as a protection measure for landowners against non-performing IPPs in the context of a PPA; and 3. Investigate to what extent landowners can rely on the law of accession as an alternative protection measure against non-performing IPPs where the lessor's tacit hypothec is not a viable legal option. Following a multiple case-study approach, PPAs provided by participating IPPs are reviewed to determine to what extent the PPAs address issues relevant to the application of the lessor's tacit hypothec and accession. Furthermore, research participants are interviewed to collect data on the technicalities regarding the method of attachment of the solar infrastructure to the landowner's property as well as the general life span of these solar systems in relation to the PPAs signed by both parties. The study also identifies the challenges in the application of the two protection measures in the context of a PPA. The findings illustrate that the provisions of each PPA must be considered when determining the possibility of applying these protection measures against the non-performing IPP. Each PPA is project-specific, creating subtle nuances to the PPA. These subtle differences may support or exclude the application of the two protection measures. The dissertation makes recommendations regarding issues that should be addressed in a PPA. It also highlights aspects for future research in this context.