Obiter - latest Issue
Volume 37, Issue 2, 2016
Author David AbrahamsSource: Obiter 37, pp 201 –227 (2016)More Less
This article has been divided into two parts, owing to its nature and scope. The aim of the work is to explore the possibility of the right to religion emerging as a jus cogens norm. In Part One, the concept of jus cogens and its role in the international community, together with the nature of the right to religion, will be discussed. It is on this foundation that the reader will be able to understand why enforcement is such an issue when considering countries such as the Democratic People's Republic of Korea, which serves as a case study and is discussed in detail in Part Two. Gross violations against the right to freedom of religion still exist despite the prevalence of international instruments protecting such rights. Something more needs to be done to hold human rights transgressors to account.
Source: Obiter 37, pp 228 –246 (2016)More Less
The purpose of this submission is two-fold. Firstly, it undertakes a socio-legal analysis of child sexuality and sexual behaviour. The goal of the analysis is to confront, albeit synoptically, common-held misperceptions, both legally and socially, on the subject of childhood sexuality. Secondly, the submission considers how legislation and judicial interpretation has responded to the expression of a child's sexuality in South Africa. The legal and judicial analysis is centred on the categorization of age, and queries the wisdom of confining normal, non-deviant sexual development in terms of disparate age classifications as expressed in South African Legislation.
Gender reassignment and the world of work : a comparative perspective on the intersection between transgenderism, trans-sexuality and appearance discrimination in the South African employment arenaSource: Obiter 37, pp 247 –264 (2016)More Less
The media hype in 2015 surrounding the former Olympic athlete Bruce Jenner's gender transition to become "Caitlyn" has put renewed focus on the issue of trans-individuals and gender reassignment. Unlike Caitlyn, however, many transsexual individuals need to function within and face an office environment every day, where employers and co-workers are not necessarily accommodating or tolerant. Workplace discrimination against transsexual employees, based on their altering or altered appearance due to gender reassignment, is a prevalent concern in places of employment across the globe, and South Africa is no exception. Employers and co-workers' subconscious appearance preferences seem to filter into employment decisions, policies and practices, causing trans-employees to suffer severe prejudice. Against the backdrop of case law and legislative developments in foreign jurisdictions as well as locally, this article assesses the formal protection afforded to trans-employees in South African workplaces. It is argued that, apart from the existing protection against sex-based and gender-based unfair discrimination, trans-employees should also be explicitly afforded formal protection against unfair discrimination on the ground of appearance before, during and after gender reassignment. The study concludes with concrete proposals to remedy the situation and contributes to a more tolerant and effective employment realm, irrespective of appearance.
Between reasonable and probable cause and malice in the law of malicious prosecution : a Commonwealth updateAuthor Chuks OkpalubaSource: Obiter 37, pp 265 –292 (2016)More Less
Although the requirements of absence of a reasonable and probable cause and malice are two distinct elements in an action for malicious prosecution, they sometimes appear inseparable. An absence of reasonable and probable cause might, in instances, be a clear indication of malice on the part of the prosecution. However, while the absence of reasonable and probable cause is often deduced from the conduct of the prosecutor, judged from the objective standpoint of a reasonable prosecutor possessed of the same information, malice is inferred from the state of mind of the prosecutor as to whether he or she genuinely intended to bring the accused person to justice, or had operated from the angle of vengeance, improper purpose, targeted malice or for any unlawful purpose. Such inference can easily be drawn where the investigating officer and the prosecutor knowingly relied on fabricated information - Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA). The burden of proof of both elements, though extensively canvassed by the Australian High Court in A v New South Wales (2007) 230 CLR 500 (HCA), has been taken a step further by the New South Wales Court of Appeal in State of NSW v Quirk  NSWCA 216. The Supreme Court of Appeal of South Africa has maintained in Woji v Minister of Police 2014 (1) SACR 409 (SCA) that negligence or gross negligence, short of dolus eventualis, would not suffice in a claim for malicious prosecution. The defendant must have been aware of the wrongfulness of his or her conduct in initiating or continuing the prosecution, but nevertheless continued to act, reckless as to the consequences of his or her conduct.
Source: Obiter 37, pp 293 –311 (2016)More Less
Only about 5% of South Africa's elderly save enough to retire adequately. The legal system makes provision for a dual support system for the indigent elderly: the common law places the burden of support on their financially able children and the State has a constitutional obligation, as it recognises social assistance as a basic human right within a financially constrained paradigm. The boundaries of each system and the interaction between them are, however, not always clear. The question of who is best placed to take responsibility for the indigent elderly has led to a prolific debate in other jurisdictions. The arguments raised in favour of assigning the care of the elderly to financially able adult children are mostly based on their relationship and the tax burden that will be placed on Government should the burden be exclusively shifted to the State. Arguments against filial duty are based on the loosening of family bonds and reasons of public policy. This article discussed both the South African private and public support systems, and concludes that the shared responsibility should remain. It is recommended that the State should, however, further empower children to support their parents through a variety of programmes and strategies.
Can a non-member spouse protect his or her interest in the member spouse's accrued pension benefits before divorce?Author M.C. MarumoagaeSource: Obiter 37, pp 312 –324 (2016)More Less
A court hearing a divorce matter is empowered by relevant provisions of the Divorce Act to order that a portion of a member spouse's pension interest be assigned to his or her former spouse, which amount should be paid by the member's pension fund when it "accrues". In order to ensure that a non-memberâ??s spouse does not wait for a long period after the divorce to be paid his or her share of the member's pension interest, the clean break principle has been introduced to enable him or her to immediately claim his or her share of the member spouse's pension benefits on the date of divorce. However, when one spouse has been accorded his or her pension benefits during the subsistence of the marriage, there is no legislative provision which forces such a spouse to share such benefits with his or her non-member spouse. But the same spouse can claim against the pension interest of the other spouse when parties divorce. This note argues that there is a need for a legislative provision which would empower non-member spouses married in community of property to claim part of the pension benefits of their member spouses when they accrue during the subsistence of the marriage.
An analysis of Professor Lourens du Plessis' early (pro-life) and later (pro-choice) perspectives on abortionAuthor Najma MoosaSource: Obiter 37, pp 325 –345 (2016)More Less
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis' constitutional argument favouring women's (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early "pro-life" views of the now retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter - to determine whether his liberal political views are compatible with his moral views and whether they may have since changed.
Daddy's home : the promotion of paternity leave and family responsibilities in the South African workplaceAuthor Asheelia BehariSource: Obiter 37, pp 346 –361 (2016)More Less
Current labour legislation provides employees with three days' family-responsibility leave for the care of their family. This means that fathers of new-born babies must rely on the provision of three days of family-responsibility leave, if they wish to take time off from work after the birth of a new baby. Alternatively, fathers will have to use annual leave on the birth of a baby. Paternity leave is exclusively offered to the working father as time off work immediately after the birth of his child, not only to care and bond with the new-born baby, but also to care for the mother during the post-natal stage. Most countries do not provide a separate legislative right to paternity leave. The right is generally included in parental-leave provisions, which provide fathers an exclusive period of leave. Providing maternity leave without a corresponding period of paternity leave creates an imbalance in family dynamics. The exclusion of paternity leave fuels the stigmatised notion of women as homemakers and caregivers. It leads to the perception that women are provided with maternity leave because the primary responsibility of women is to care for children, whereas men need not be afforded paternity leave because their primary responsibility is to be a "bread-winner". Therefore, providing the right to paternity or parental leave would promote the equal treatment and opportunities between men and women in the workplace. The Constitution guarantees gender equality and fair labour practice. South Africa has made legislative efforts to provide these rights through labour law and decisions of the Labour Court. While certain aspects of these efforts have proved effective, the labour laws of South Africa fail to provide paternity leave for fathers.
Uber vis-à-vis UTI - onafhanklike kontrakteurs of werknemers : tempering van artikel 200a van WAV : aantekeningAuthor Fanie Van JaarsveldSource: Obiter 37, pp 362 –368 (2016)More Less
Uber-Technologies het wêreldwyd die afgelope paar jaar prominent op die voorgrond getree en tradisionele huurmotorskemas in beroering gehad en "uit rat gegooi". Benewens sy eie vestingsprobleme in Suid-Afrika, het dit in Noord-Amerika (Amerika en Kanada) by verskeie geleenthede by litigasie ten opsigte van dieselfde regsvraag betrokke geraak. Die sleutelvraag was telkens of die bestuurders van hulle eie voertuie as sogenaamde huurmotors ten behoewe van Uber(U) se kliënte, as werknemers van Uber beskou moes word, of was en is hulle bloot onafhanklike kontrakteurs wat hulle eie voertuie (toerusting) gebruik het om 'n eie inkomste te verdien.
Vultures before the Constitutional Court : the cheque is in the mail
Khohliso v S  ZACC 33 : case noteSource: Obiter 37, pp 369 –380 (2016)More Less
The legislative protection of wildlife in the Eastern Cape is not in what one would describe as a state of orderliness. Considering merely provincial or other regional legislation, one finds that there are at least three (four, if one includes the Problem Animal Control Ordinance 26 of 1957) such pieces of legislation operating simultaneously, or in parallel, depending upon where one finds oneself in the Eastern Cape, regulating the same subject matter. In the first place there is Decree 9 of 1992 which applies to what was once the independent homeland of Transkei before Transkei once again became part of the "new" South Africa, following the constitutional developments since 1993. Decree 9 was issued by presidential decree upon the recommendation of a Military Council, following a military coup which soon replaced the "democratic" government of the Transkei. Similarly there is the Nature Conservation Act 10 of 1987 (Ciskei) which applies to what was the independent homeland of Ciskei, which also became part of South Africa following the same constitutional developments since 1993. (The Ciskei too suffered a military coup soon after attaining independence.) As for the remainder of the Eastern Cape, the subject matter is regulated by the (Cape) Nature and Environmental Conservation Ordinance 19 of 1974, a creation of the Cape Provincial Council then in existence. The Provincial Councils were ultimately abolished by the Provincial Government Act 69 of 1986, and their law-making powers were transferred to the Executive.
Are the rights of business employees preferred more than the rights of domestic employees?
Gungudoo v Hannover Reinsurance Group (Pty) Ltd (585/11)  ZASCA 83 (30 May 2012) Revisited : case noteAuthor Howard ChitimiraSource: Obiter 37, pp 381 –391 (2016)More Less
This case note examines, inter alia, the effect of a sequestration order on the debtor and relevant stakeholders such as creditors, shareholders and other interested parties (see s 20 read with s 9, 10, 11, 12, 17, 19, 21, 23, 37 and 38 of the Insolvency Act 24 of 1936 (hereinafter "the Insolvency Act"). The case note further discusses certain requirements for the application of a sequestration order in South Africa (s 9, read with s 10-12 of the Insolvency Act) in light of the judgment in Gungudoo v Hannover Reinsurance Group Africa ((585/11)  ZASCA 83 (30 May 2012) (hereinafter "Gungudoo case"). This case raised some pertinent questions regarding the application and serving of a sequestration order on the debtor, in terms of the Insolvency Act (s 9(4A), 11(2A) and 11(4)).
Author Shannon HoctorSource: Obiter 37, pp 392 –400 (2016)More Less
In certain circumstances, certain drivers are authorised to drive with a blue light and siren flashing on a public road. Thus, in terms of regulation 308(1)(h) of the Regulations issued under the National Road Traffic Act 93 of 1996 (hereinafter "the Act") any person driving or having a vehicle on a public road is required to "give an immediate and absolute right of way to a vehicle sounding a device or bell or displaying an identification lamp in terms of section 58(3) or 60 or regulation 176". Section 58(3) permits the driver of emergency vehicles, a traffic officer, and duly authorised drivers, as well as, particularly pertinent to the discussion which follows, a "person appointed in terms of the South African Police Service Act ... who drives a vehicle in the carrying out of his or her duties" to disregard the directions of a road traffic sign displayed in the prescribed manner. There are two provisos: that such driver must drive the vehicle concerned "with due regard to the safety of other traffic"; and that such vehicle is fitted with a device capable of prescribed sound and a prescribed identification lamp, both of which must be in operation during such driving. Section 60 mirrors the provision in section 58(3), allowing for certain drivers to exceed the speed limit, subject to the same provisos. Regulation 176 authorises a member of the South African Police Service (along with a member of a municipal police service, a traffic officer, and a member of the South African Defence Force performing police functions) to utilise a lamp emitting a blue light in the exercise of his or her duties.
Directors' fiduciary duties and the common law : the courts fitting the pieces together
Mthimunye-Bakoro v Petroleum Oil and Gas Corporation of South Africa (SOC) Limited (12476/2015)  ZAWCHC 113; 2015 (6) SA 338 (WCC) (4 August 2015) : case noteAuthor Lindi CoetzeeSource: Obiter 37, pp 401 –409 (2016)More Less
The partial codification of directors' duties in section 76 of the Companies Act (71 of 2008, hereinafter "the Act") is not a comprehensive statement of directors' duties. Section 158 of the Companies Act requires of a court to develop the common law as necessary to improve the realisation and enjoyment of the rights created in the Act. In a partial codification the common law is still applicable to the extent that it has not been excluded. The courts can develop the duties and even create new duties as opposed to complete codification where the courts may refer to the common law when interpreting the statutory duties, but cannot create new duties (see also Delport (ed), Vorster, Burdette, Esser and Lombard Henochsberg on the Companies Act 71 of 2008 Volume 1 Service Issue 10 (May 2015) 290(4)).
"Pay day" for illegal foreigners
Rahim v The Minister of Home Affairs (965/2013)  ZASCA 92 (29 May 2015) : case noteAuthor Darren SubramanienSource: Obiter 37, pp 410 –422 (2016)More Less
People from across the African continent continue to make their way to South Africa to escape violence and poverty in their own countries. South Africa is also seen as a beacon of stability and economic growth on the continent (How South Africa became the World's #1 Asylum Destination, LGBT Asylum News, November 2011 http://madikazemi.blogspot.com/2010/ 09/how-south-africa-became-worlds-1asylum.html; and see also Hathaway Reconceiving International Refugee Law (1997) 8). There has been growing concern that the illegal influx of foreigners in search of a better life, and the failure by the South African Government to control its porous borders, have led to a high degree of animosity and resentment, directed at foreigners (Pretorius "Political Refugees as Victims of Prejudice, Discrimination and Abuse" 2004 17(2) Acta Criminologica 131).
Ghosts of the municipal debts' past : is Mitchell resurrecting the Mathabathe spectre? - Not quite
Perregrine Joseph Mitchell v City of Tshwane Metropolitan Municipal Authority (50816/14)  ZAGPPHC 758 : case noteAuthor Matome M. RatibaSource: Obiter 37, pp 423 –435 (2016)More Less
The unfortunate choice of words by the judiciary in the case of City of Tshwane Metropolitan Municipality v Mathabathe ((502/12)  ZASCA 60 (hereinafter "Mathabathe case") has resulted in a barrage of incorrect interpretations being attributed to the decision. All of these have translated into massive uncertainty, coupled with boundless confusion as regards the whole issue of the collection of municipal debts by the municipality. Also, it had become clear to municipal entities that some of the erstwhile innovative ways of exploiting the legal framework created by the applicable legislation (eg, the withholding of certificates and demanding guarantees) have effectively been thwarted by the Mathabathe case. Responding thereto and moreover seizing upon the opportunity created by the now-existing uncertainty, municipalities have been quite inventive, and taken it upon themselves to embark on a myriad of newfound steps and methods which are generally grossly unfair and sometimes bordering on the illegal, in order to collect outstanding rates and taxes (Rice "Municipality Receives Beating in Court after Disconnecting Home Owner's Electricity Supply" 15 May 2015 http://heidelbergnigelheraut.co.za/1159/municipality-receives-beating-in-court-after-disconnecting-home-owners-electricity-supply/ (accessed 2015-07-10)). To a large extent, the entities have been engaging in, and in fact, intensifying the long-standing practice of conducting large-scale impromptu electricity disconnections, coupled with the recent refusal to connect new owners of properties with historical debts (Beamish "Tshwane Tries to Make New Owner Pay the Old Owner's Municipal Account" 30 April 2014 http://www.moneyweb.co.za/archive/new-property-owners-held-liable-for-defaulters-due/ (accessed 2015-07-13).
Unfettered, but not unbridled : the fiduciary duty of the trustee
Wiid v Wiid NCHC (unreported) 13-01-2012 Case no 1571/2006 : case noteAuthor Eben NelSource: Obiter 37, pp 436 –448 (2016)More Less
The fiduciary duty and accompanying discretionary power of the trustee in South African trust law is considered, with particular reference to its application in Wiid v Wiid. The contents and exercise of trustees' discretion in light of the fiduciary duty are examined and applied to the particular judgment. The conventional attribution by trust deeds of an unfettered trustee discretion is proved to be subject both to the limitations inherent to the fiduciary duty and the unique nature of the trust figure. It is submitted that, notwithstanding some equivocal statements by the court, valuable lessons for trustees can be taken from the matter in casu.