There is a certain scope for confusion or at least uncertainty as to whether s 10(2)of the Recognition of Customary Marriages Act 120 of 1998 (the Act) provides for spouses in a subsisting customary marriage in community of property, who later contract a marriage with each other under the Marriage Act 25 of 1961, to enter into an antenuptial contract thereby in effect changing the matrimonial property system applicable to their marriage without same being sanctioned by the court.
June 2015 (3) South African Law Reports (pp 313 - 649);  2 All South African Law Reports May no 1 (pp 251 - 386) and no 2 (pp 387 - 515); 2015 (5) Butterworths Constitutional Law Reports - May (pp 509 - 652); 2014 (2) Competition Law Reports (pp 339 - 543)
Schippers J gave judgment dismissing Abubaker Noordien's application for leave to appeal to a full Bench of the Western Cape division of the High Court, or the Supreme Court of Appeal (SCA) against a judgment handed down by the Cape High Court on 13 January 2015. In that order the court dismissed, with costs, the application for declaratory orders that the referral rule and s 83(1) and 83(3) of the Attorneys Act 53 of 1979 are unconstitutional.
Prior to the advent of the Companies Act 71 of 2008, a defendant, confronted with a claim brought by a company of dubious financial standing, was able to invoke the provisions of s 13 of the previous Companies Act 61 of 1973 and bring an application requesting the court to order provision for the security for the costs of the pending action. Section 13 stated: 'Where a company or other body corporate is plaintiff or applicant in any legal proceedings, the court may at any stage, if it appears by credible testimony that there is reason to believe that the company or body corporate or, if it is being wound up, the liquidator thereof, will be unable to pay the costs of the defendant or respondent if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings till the security is given'.
Having been dismissed from his workplace the applicant referred an unfair dismissal dispute to the Commission of Conciliation, Mediation and Arbitration (CCMA) in which he claimed that he was victimised because of information he had discovered, which he believed amounted to fraud. Before the matter was set down for conciliation the applicant approached the Labour Court (LC) and filed a statement of case claiming that his dismissal was automatically unfair and based on racial discrimination, white nepotism and sexual harassment. The dispute was conciliated at the CCMA and categorised as a dispute envisaged in terms of s 187 of the Labour Relations Act 66 of 1995 (LRA) - victimisation on the basis of a protected disclosure. The matter was certified as unresolved and the certificate issued by the commissioner indicated that the matter may be referred to the LC for adjudication. It was common cause that at the time the conciliation hearing took place the applicant had already lodged a statement of case at the LC, which was based on the same cause of action.