Protecting Marginalised Groups through Constitutional Complaint: Access to the South African Constitutional Court

land as a socio-economic right and secondly, women as a social category, and then reviews what is currently in place with regard to gender equality in land rights, in terms of the Constitution and at the level of state policy and implementation. Land rights constitute a distinctive category of socio-economic rights and the relationship between stronger land rights and enhanced well-being (for both men and women) is not a simple and unmediated one. At the same time, women’s interests in land are not uniform but are shaped by complex intersections among various issues, including the broader economic context, their social location, and the effects of social change on family forms and household structure. In the South African case, given general problems with the state’s programme of land reform, the question of what it means to infuse the principle of equitable property rights, more specifically land rights, with substantive equality is still an open one. Substantive gender equality in relation to land can also not be separated from other struggles for socio-economic rights.

The political origins of various civil and political rights have been clearly theorized by Tom Ginsburg and others in work on the function of judicial review in new democracies. To date, however, there has been relatively little work on the political origins of socioeconomic or second generation rights, such as rights to housing or health-care. The essay attempts to fill this gap, by expanding existing insurance-based theories to account for the potential insurance swap-based function of such rights for left-wing parties to constitutional negotiations, when making concessions on the scope of a property rights clause. Such an account, the essay suggests, fits closely with the actual drafting of ss. 25-29 of the 1996 South African Constitution, and thus also has potential implications for the interpretation of such provisions by the South African Constitutional Court. From an originalist perspective, at least, it suggests that in cases involving a potential conflict between property and other socioeconomic rights, courts should attempt to balance the two sets of rights in as context-sensitive a way as possible, and in other cases, to attempt to preserve scope for such an approach, by reasoning narrowly, or avoiding broad statements in favor of either a highly deferential or expansive approach to the definition of such rights. This also accords surprisingly well, the essay suggests, with the actual approach of the South African Constitutional Court in various cases decided in the 2010 Term on socioeconomic rights, such as Musjid, Abhali, Gudwana, as well as in many earlier cases.

The current `1987 Constitution` introduced the Constitutional Complaint system for the first time in the constitutional history. The Constitutional Complaint, which is a subjective right remedy to apply to a special court, could be the core of the Constitutional Court if the public power violates the Constitutional rights of the subject of the Fundamental Right. However, such the Constitutional Complaint system also does not play a significant role in the area of Local Government system revitalized as the current Constitution implemented. In the case of the violation of Fundamental Right or Autonomy of Local Government, it is necessary to examine whether it can be relieved through the Constitutional litigation means of the Constitutional Complaint, whether there is a contact between the Constitutional Complaint in the Constitutional court system and the Constitutional Local Government system. BR The purpose of this study is to propose juridically reasonable ways in relation to the introduction of the Constitutional Complaint system of Local Government. In addition to presenting the interpretation theory of whether or not the Constitutional Complaint for Fundamental Right Remedy of Local Government is possible, this study would suggest a detailed legislative solution for the Constitutional Complaint of Autonomy Remedy of Local Government.BR First, this study would examine whether the Local Government incorporated in the public law is the subject of the Fundamental Right. As the German pluralism and the case of the Federal Constitutional Court in principle deny and exceptionally recognize the subjectivity of Fundamental Right of the public corporation, based on this perception, domestic theories and precedents on the subjectivity of Fundamental Right of Local Government would be analyzed. This study would criticize the case of Constitutional Court in Korea, which has a passive attitude to the recognition of Fundamental Right of Local Government, and would emphasize the resonable conclusion according to individual cases through interpretation.BR Next, this study would propose a concrete legislative plan for the Constitutional Complaint of Autonomy Remedy of Local Government. This study would evaluate the Constitutional Complaint of Local Government in German, which has its positive legal basis in the basic law and the federal law, and would propose the legislative introduction of this system through the amendment of the current Constitution and Constitutional Court Act in Korea. Through the review of the precedent study which would assert the introduction BRand would propose the legislative plan of the Constitutional Complaint of Local Government in German, in the end, this study would assert to require the amendment of Article 111 (1)(the establishment of No. 6) of the Constitution, the amendment of Article 2(the establishment of No. 6) and the establishment of Article 68-2 of the Constitutional Court Act in order to introduce the German Autonomous Complaint.

PROTOCOL: The Impact of Land Property Rights Interventions on Agricultural Productivity in Developing Countries: A Systematic Review

South Africa’s 1996 Constitution is renowned for its inclusion of an expansive range of justiciable socio-economic rights. The South African Constitutional Court has taken different approaches in the way it reasons its decisions and constantly tries to find appropriate ways of giving effective remedies in cases of socio-economic rights claims. The early years of scholarship on socio-economic rights in South Africa were primarily devoted to the merits and demerits of the Court’s approach. The focus has been the Court’s approach to the interpretation of socio-economic rights, particularly the reasonableness standard of review for the positive obligations imposed upon government by these rights. However, the Constitutional Court has developed an innovative practice called meaningful engagement in cases relating to evictions and the right to access adequate housing. This approach recognizes that there is a variety of legitimate ways to ensure and implement socio-economic rights, and also promotes the participation of both government authorities and communities, as well as individual citizens, in the resolving of cases concerning violations of these rights. Rather than impose a decision on the parties, the Constitutional Court directs the parties to engage together in a process to ensure that they themselves, as a result of dialogue, reach a settlement that would lead to a more optimal outcome for both sides, and also to ensure the implementation of socio-economic rights. The meaningful engagement allows persons whose rights have been violated to take part in the process of making state decisions concerning their rights. The deliberations that take place as part of meaningful engagement play a key role in identifying existing problems and circumstances of the case concerning violations of socio-economic rights, which contributes to making more substantiated judicial decisions and also allows to resolve the issues of legitimacy of the Constitutional Court’s decisions and its institutional competence. Overall, the practice of the Constitutional Court illustrates the significance of the participatory and deliberative democracy principles in resolving disputes over violations of constitutional rights. The article examines the emergence of the requirement for meaningful engagement, analyses the case law of the Constitutional Court of South Africa, and considers the benefits and disadvantages of this requirement.

The constitutional complaint is one of the important constitutional court jurisdictions that can be described as a complaint or lawsuit filed by any person who deems his or her rights has been violating by act or omission of public authority. Currently, the constitutional court in many countries have adopted a constitutional complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came from Europe. In Austria, the constitutional complaint is allowed against the administrative actions but not against the court decisions. While Germany and Spain have a similar model that is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that the court in Asia actively participate in the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a system of constitutional adjudication in a variety of models, and when it comes to jurisdictions, out of sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their jurisdictions. In Azerbaijan, constitutional complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle constitutional complaint against the normative legal act of the legislative and executive, an act of a municipality and the decisions of courts. In contrast, even though constitutional complaint in South Korea and Thailand can be against the exercise and non-exercise of state power, constitutional complaint cannot be filed against court decisions. In Turkey, the constitutional complaint mechanism is coupled with the regional system of human rights protection. The Turkish Constitutional Court handles complaints from individuals concerning violations of human rights and freedoms falling under the joint protection of the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part of the constitutional court, and through a comparative perspective among three countries in Europe and four AACC members are expected to provide lessons for the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.

Property rights discourse, particularly the scope, nature, distribution, redistribution, recognition and protection of property rights, has dominated debate in African post-colonial property rights systems. In Zimbabwe, property rights law has been a contested space since the colonial era. That the property rights system is a contested arena is particularly so in view of the fact that colonial subjugation in Zimbabwe was characterized, in a very important way, by politically motivated land dispossession and, consequently, inequitable property rights distribution patterns. As a result, Zimbabwe's property rights law has always responded to mainstream, albeit fluid, political and economic undercurrents. This has meant that mainstream historical and contemporary debates have provided the context for understanding the constitutional regulation of property and land rights in Zimbabwe. This article assesses the constitutional regulation of constitutional property and land rights in Zimbabwe, and the conflicts and tension that are accommodated in the constitutional property rights framework.

This Campbell systematic review examines the effect of interventions to strengthen land property rights on outcomes such as investment, agricultural productivity and farmer incomes in rural areas in low and middle‐income countries. The review summarises evidence from 20 quantitative studies (quasi‐experimental studies with statistical adjustment for bias) and nine qualitative studies. Land property rights improve productivity, consumption expenditure and income. However, caution is needed in interpreting this finding as there are few high‐quality studies available. The studies suggest that land property rights interventions contribute to welfare through improved perceived security and resulting long‐term investment. No studies showed that land property rights interventions improve access to credit. Executive Summary BACKGROUND Secure and predictable access to land as a productive resource is key to the livelihoods of millions of farmers around the world. Secure land tenure enables farmers to invest in long‐term improvements to their farms and soils in the expectation that they will reap the benefits of those investments without fear that their land be confiscated arbitrarily. Formal and informal land rights are therefore seen as key to improving the conditions of the poor in developing countries in terms of economic growth, agricultural production, food security, natural resource management, gender‐related inequalities, conflict management and local governance processes more generally. Existing evidence on the effects of land property rights interventions is mixed and to a considerable degree dependent upon the initial land rights conditions. In many cases where existing rights are already secure through stable informal and customary systems, the formalization of rights through land titling, one form of strengthening rights, may have little impact. In other cases, mechanisms for formalizing property rights where no formal institutions had previously existed are argued to have increased productivity and slowed forest loss. Much of the literature underscores the complexity of attribution and the importance of context to understanding relationships between security, registration and productivity, and to understanding gender dimensions. They also suggest tenure security alone is not a ‘silver bullet’ leading directly to higher farmer incomes, or that it is solely attributed to tenure reforms– that is, context matters. No known systematic review or meta‐analysis on the relationships between land property rights and productivity or welfare has been undertaken to date, and concerns have been highlighted by others over inconsistent effects and design limitations in some studies of tenure reform. This has therefore provided strong motivation for a systematic review that serves as an independent review of the quality and reliability of findings offered in the available literature. In particular, this review sought to examine the specific impacts of two types of land rights interventions: Conversion of communal or non‐demarcated rural land to freehold title and registration of such rights in an official registry; and Statutory recognition and codification of customary or communal rural land rights, and registration of these rights in an official registry. OBJECTIVES The objectives of the review are as follows: to understand the quantitative and qualitative impacts of interventions to strengthen land property rights on agricultural and livelihood outcomes in rural areas of low and middle income countries to assess whether these effects are different for men and women, and under what circumstances to assess specific mechanisms that enable or limit productivity improvement (barriers and facilitators) SEARCH STRATEGY The search strategy involved searches of 16 online databases, grey literature, hand searches of 27 key journals and bibliographic snowballing. The searches were carried out in October 2012 and the non‐impact evaluation, or qualitative, results were revisited again in July of 2013 after feedback on an initial draft of the report. SELECTION CRITERIA The review synthesizes quantitative evidence only from studies that: used randomized experiments or quasi‐experimental methods employing strategies for causal identification and using some method for removing biases due to non‐random assignment of treatment; estimated the impact of either conversion to freehold title or statutory recognition of land rights; measured at least one intermediate outcome defined in the study, or final outcomes (productivity of land use, welfare of pre‐ and post‐policy rights holders in terms of income/ consumption or poverty, gender‐based welfare outcome measures, or income/ consumption or poverty); estimated impacts with outcome data measured at the individual or household level; were undertaken in developing countries (as defined by the World Bank); and that measured outcomes at some point between 1980 and 2012. The qualitative criteria aimed to provide context and address possible answers to how and why interventions may or may not have been successful overall or for certain groups in particular. Eligibility of non‐impact evaluation studies was determined via a two‐stage screening process to facilitate the review of only the most relevant studies while quickly filtering out inappropriate research based on the Critical Skills Appraisal Programme (CASP) tool. This involved similar criteria to the quantitative search, albeit with different methodological requirements. Specifically, studies were filtered based on clearly defined research objectives, links to relevant literature, context and sample selection, data collection, methods, as well as quality and relevance of their analyses. Other types of reform were not eligible for inclusion in the review, including those relating to justice, capacity‐building, outreach, and inheritance. DATA COLLECTION AND ANALYSIS Data extraction sheets were devised to facilitate comparison of interventions discussed in studies meeting the inclusion criteria. For quantitative studies, estimated effects on any of the intermediate and final outcomes were extracted. For all studies, quotes from the study on how the intervention seemed to have affected any of the intermediate outcomes were extracted. For outcomes measured in terms of monetary value (productivity, value of credit received, and consumption), we carried out our quantitative analysis in monetary terms as well. When natural logarithms were not used (for example, value of credit received), we used a standardized difference that standardizes the outcome relative to the control group standard deviation. For binary outcome measures (indicators for long term investment, formal borrowing) of treatment effects in terms of absolute changes, a variety of analyses were carried out including consideration of the natural logarithm of the risk ratio. When a study included multiple estimates of the same treatment effect, we used the one judged to have minimal risk of bias. Quantitative studies were coded in terms of risk of bias in estimating impacts, and were assessed using the IDCG Risk of Bias Tool. Because of high inter‐study heterogeneity in effect sizes, random effects synthesis and random effects meta‐regression on moderator variables were used. Furthermore, given the low number of studies (20 quantitative studies), only bivariate meta‐regressions of effect estimates on moderators were performed. For the qualitative component of this review, an aggregative metasummary approach was undertaken, focusing on quantitatively identifying the frequency of qualitative results found in the research via a five stage process of findings extraction, category grouping, theme abstraction, identification of frequency and intensity of findings, and results interpretation. This approach avoids the synthesis of concepts and creation of lines of argumentation. RESULTS The quantitative results presented are based on a corpus of 20 studies focusing on the impact of land rights recognition or formalization at the level of the farming household. In the Latin American and Asian cases, recognition typically took the form of freehold titling. The African studies assessed programs where rights were recognized through provision of freehold title, through formal registration of customary rights, or through conversion of customary rights to long‐term leasehold rights. We were not able to identify any quantitative evidence of sufficient quality examining the investment or productivity effects of statutory recognition of customary land rights. The studies on freehold titling provide evidence mostly consistent with conventional economic theories of property rights. The limited quantitative evidence base suggests benefits of land tenure interventions, measured in terms of productivity and consumption expenditure or income, and suggests that long‐term investment and increases in perceived tenure security are plausible channels through which tenure recognition may contribute to welfare for tho

This essay seeks to compare two approaches to property reform as solutions to historical injustice. Brazil and South Africa prove to be prime examples of how incorporating and entrenching socio-economic rights into their constitutions is an effectual method of remedying historical injustice. Using a social obligation theory of property rights as a guide, this essy will seek to show that property reform is essential to remedying historical injustice. In particular, this essay will focus on the constitutional provisions created to protect property and socioeconomic rights in both countries. Providing for the stability and security of these rights is a powerful method of social transformation wich moves away from historical injustice. In Part I, this essay will present the social obligation theory of property and mention the benefits of entrenching rights to property and socio-economic rights in a country’s constitution. In Part II, this essay will introduce the Brazilian scheme for land reform by first summarizing its development, the constitutional provisions, and then the current state of the “landless” problem. In Part III, this essay will give a brief description of the historical background of injustices in South Africa, present the relevant South African constitutional provisions, and then discuss the country’s current landless problem. In Part IV, the essay will compare the two schemes and evaluate their relative successes in achieving their land reform goals.

Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights. We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either. Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.

The acquisition fee for land and building rights is payable to be repaid when the acquisition of rights occurs, while on the other hand the Regulation of the Minister of Agrarian Affairs and Spatial Planning/National Land Agency in Article 33 does not require the payment of fees for the acquisition of land rights and a certificate is still issued, so that a certificate of land rights is issued which is burdened with an obligation to acquire land and building rights owed. The disharmony of this arrangement creates legal uncertainty so that it affects the legal strength of land rights certificates which are burdened with debt acquisition fees for land and building rights. Based on this background, a normative juridical research method (legal research) is used, with a legal approach and a conceptual approach. The procedure for settlement of fees for the acquisition of land and building rights in the issuance of land rights certificates in Article 33 of the Regulation of the Minister of Agrarian Affairs and Spatial Planning/National Land Agency no. 6 of 2018 is contrary to Article 9 paragraph (2) of Law no. 20 of 2000 which regulates fees for the acquisition of land and building rights, so that it does not meet one of the 8 values of legal certainty, namely that a legal system must not contain conflicting regulations. Based on the research, it can be concluded that the certificate of ownership that is charged with the acquisition of land and building rights payable in a complete systematic land registration program does not have legal force, so that it has legal consequences for the object and subject of land rights. it is necessary to harmonize the law against ATR/BPN Regulation No. 6 of 2018.

D ISCUSSIONS of the efficiency of various systems of land tenure are marred by all sorts of imprecision in analysis. Economists have developed a clear notion of economic efficiency but discussions of land tenure invariably bring in some sociological and wealth-distribution constraints when discussing the efficiency aspects of tenure systems. Social anthropologists and others stress that certain tenure systems are integral parts of social systems involving such things as insurance for old and young, with the implication that even though these tenure systems might not facilitate (pecuniary) wealthmaximization, yet the non-pecuniary wealth facilitated provides "enough" compensation in some general welfare sense. I shall discard such sociological arguments because I believe that there is no reason why the sociological benefits of particular tenure systems cannot be obtained by some alternative arrangement while creating a tenure system that is designed to facilitate wealth maximization and wealth increases.

THE LANDS WERE NOT EMPTY

The 2011 decision by the Constitutional Court (CC) in Governing Body of the Juma Musjid Primary School and others v Essay NO and others, which dealt with the right to basic education in the context of an application for the authorisation of the effective eviction of a public school conducted on private property, provides us with telling insight about the possible scope and content of the right to basic education guaranteed in section 29(1) of the South African Constitution (Constitution). More than 16 years after the enactment of the CC has not had an opportunity to provide clarity on the scope and content of the right to basic education. Although the CC did not (and was not required to) provide full clarity on this issue in the Juma Musjid case, Justice Nkabinde provided pointers to assist with understanding the scope and content of the right to basic education guaranteed in section 29(1) (a) of the Bill of Rights, affirming that the right - unlike some of the other socio-economic rights - is immediately realisable. The CC confirmed that because there is no internal limitation in section 29 (1) (a) requiring access to the right, that the right be progressively realised within available resources subject to reasonable legislative measures, the right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Indeed, while all socio-economic rights in the Constitution provide for negative and positive obligations, the right to education is unique in that it includes the right to basic education, which unlike the right to housing and the right to water has no internal qualifiers. That recognition of the fundamental difference between the obligations engendered by section 29 (1) (a) and the obligation engendered by other social and economic rights protected in the Constitution forms the basis of the analysis in this article. In this article the author advances the argument that basic education is not only an unqualified human right but that section 29 imposes an obligation on the state to provide a minimum core of that right to everyone. It must be conceded that the CC has indeed previously stated that the international law concept that social and economic rights place a minimum core obligation on the state cannot be uncritically imported into South African constitutional law and that, at best, it can be used to assist the CC to determine whether or not the state had acted reasonably. However, the contention in this paper is that the recognition by the court judgment in the Juma Musjid case of the unique formulation of section 29 (1) (a) when compared and contrasted with other socio-economic rights already interpreted by the CC, should consequently lead the CC to accept that the minimum core concept applies to the interpretation of section 29 and section 29 (1) (a) which is that the right to basic education should be regarded as the minimum core standard of the right to education in South Africa.

In post-conflict Burundi, land scarcity, rapid population growth, the heightened commodification of land serve as triggers to conflict and violence and significantly threaten the sustainability of long-term peace. This article interrogates the ways land tenure reforms affect women's housing, land and property (HLP) rights in Burundi where despite decades of intense mobilisation by progressive women's groups, the recently adopted national land code is still to be fully implemented. The paper argues that gender-neutral land reforms and law enforcement mechanisms interact with the failure to fully implement the national land code, multiple normative orders and social forces and tend to reinforce male hegemony over land. Although customary land tenure is the mantra of the tenure reform process, and tends to strengthen women's land rights, the various reform measures are skewed in favour of men. The failure to reform the marriage and succession laws is the most significant factor barring women's land rights. The adoption and implementation of laws that guarantee an equal right to inheritance between the sexes, sensitisation of, and the provision of legal aid to women claiming their land rights in front of conflict management institutions are required.