Finding Common Ground: Rights Arising from Land Reform in South Africa, India and Brazil
Comparing the apex courts of Brazil, India and South Africa by Baxi, Vilhena and Viljoen, Pretoria University Law Press, 2013
43 Pages Posted: 6 Jan 2015 Last revised: 7 Jan 2015
Date Written: December 31, 2013
Abstract
Is there an analogous approach of developing countries to the issue of land, land reform and housing? Inevitably, there are links between housing and land because the security of one depends on the tenure system of the other. In comparisons between the countries of South Africa, India and Brazil, an attempt is made to reflect on the development of the right to redistribution of land by analysing the historical background of all three countries, the development of constitutional rights and human rights in each, mainly through a scrutiny of the case law of the apex courts and then to try and find parallels that might be apparent in legal arguments and jurisprudence. The historical approach reveals that, while South Africa and India are both former British colonies, the effect of the colonial law in India is more enduring. The constitutional drafters in South Africa were mindful of the pitfalls of emulating the British legal approach and opted for a constitutional state. South Africa, Brazil and India have encountered delays in implementing and reform through the courts because of the juridical nature of land acquisition for land reform. Brazil, while not a common law country, continues to be hampered in implementing land reform as the current landowner resists attempts at expropriation in the public interest or for public purposes, usually for land reform, which are also features of South Africa and India in different degrees.
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