South African Law Journal - Volume 125, Issue 3, 2008
Volume 125, Issue 3, 2008
Source: South African Law Journal 125, pp 1 –26 (2008)More Less
Author Elsje BonthuysSource: South African Law Journal 125, pp 473 –483 (2008)More Less
In the Fourie judgment the Constitutional Court framed the issue of conscientious objection in the Civil Union Act as a compromise between the marriage officers' constitutional rights of freedom of religion, belief and opinion, on the one hand (s 15 of the Constitution of the Republic of South Africa, 1996), and the right of same-sex couples to be free from discrimination on the grounds of sexual orientation (s 9 of the Constitution) on the other hand. This note examines the particular way in which this balance was struck in the Civil Union Act and argues that, although religious and other beliefs were accommodated, this was done in a completely arbitrary manner which erodes the very rights to equality that the Act purports to extend to same-sex couples. It does so by comparing, first, the accommodation of different kinds of marriage officers and, secondly, the different kinds of objections that are accommodated by the legislation.
Author Michael Cameron Wood-BodleySource: South African Law Journal 125, pp 483 –488 (2008)More Less
In 1999 Dupper and Garbers were able to state confidently, in their interesting article on discrimination against same-sex couples in the employment context, that 'the non-extension of benefits to same-sex couples would almost certainly constitute unfair discrimination and . . . it would be both unfair and difficult to justify' (Ockert Dupper & Christoph Garbers 'The provision of benefits to and discrimination against same-sex couples' (1999) 20 ILJ 772 at 806).
Author Tumai MuromboSource: South African Law Journal 125, pp 488 –504 (2008)More Less
Undoubtedly the majority judgment in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province & others 2007 (6) SA 4 (CC) (Fuel Retailers) represents a crucial milestone in South African environmental law. The highest court dispelled the growing, and legitimate, perception that South African environmental laws, particularly the environmental impact assessment (EIA) regulations made under s 24 of the National Environmental Management Act 107 of 1998 (NEMA), are overly informed by an environmentalist paradigm that negates the idea of sustainable development (see Tracy-Lynn Field 'Sustainable development versus environmentalism: Competing paradigms for the South African EIA regime' (2006) 123 SALJ 409 at 423). This case is the first in which the Constitutional Court considered in detail the nature and scope of the concept of sustainable development. More importantly, it elaborates unequivocally on the nature of the legal obligations of environmental authorities under the EIA regulations. The majority judgment goes further than the High Court decisions that have hitherto confirmed that the EIA process is not only about environmental protection, but also the promotion of socio-economic development.
Author Lynette OlivierSource: South African Law Journal 125, pp 504 –514 (2008)More Less
In line with international precedent, the South African Revenue Service (SARS) has been entrusted with extensive powers to compel taxpayers to disclose information. Apart from general information-seeking powers (ss 74-74D of the Income Tax Act 58 of 1962), legislation has recently been introduced to compel taxpayers to report certain transactions, referred to as 'reportable arrangements', up front ((ss 80M-80T, introduced by s 6(1) of the Revenue Laws Second Amendment Act 20 of 2006).
Author Tracy GutuzaSource: South African Law Journal 125, pp 514 –520 (2008)More Less
The recent 2007 tax case ITC 1819 (2007) 69 SATC 159 is noteworthy on two grounds. First, it is one of only a few South African tax cases dealing with the application and interpretation of double taxation agreements (DTAs), in this instance an agreement concluded between Lesotho and South Africa. Secondly, it highlights two crucial issues in such cases, namely the importance of determining the correct tax-paying entity and the interaction between DTAs and domestic tax legislation.
Author Kate HofmeyrSource: South African Law Journal 125, pp 521 –552 (2008)More Less
Author Marius PieterseSource: South African Law Journal 125, pp 553 –572 (2008)More Less
This article explores the interaction between health, autonomy and empowerment in the South African context. It considers social and structural factors impacting on health-related lifestyle 'choices', assesses the protection and enhancement of health-related autonomy in South African law and critically analyses elaborations on individual autonomy, in health-related contexts, by South African courts. The article ultimately argues for a more substantive legal conception of individual autonomy that reflects human interdependence and acknowledges the links between lifestyle choices conducive to health and the material dimensions of socio-economic empowerment.
Source: South African Law Journal 125, pp 573 –591 (2008)More Less
With rapidly growing South African urbanization, mixed-use developments are recognized as the most viable utilization of high-density urban space. In specialized sectional title schemes consisting of one or more multi-unit ownership buildings, there is an increasing need to separate the various components of the scheme according to user and to apply the rules of sectional title separately to each component. In a scheme that comprises a commercial component, for example offices and residential units, there is no reason why all the members of the scheme should be responsible for the maintenance of a lift that serves only a particular component. Similarly, owners of commercial units in a mixed-use scheme should not depend on the co-operation of the other owners if they wish to make rules applying to the toilets used by their clients. Moreover, there is no reason why owners of every component of the building or buildings should not have a separate budget to cover their own expenses. Singapore strata title legislation has tried to accommodate these inevitable clashes of interests which ultimately result in disharmonious sectional title communities by introducing a two-tier management structure consisting of a main management body administering general matters and two or more subsidiary management bodies administering the affairs of a particular user group. The aim of this paper is to consider whether this unique system could be adopted as a model for introducing a two-tier governance system in South Africa.
Author A.J. Van der WaltSource: South African Law Journal 125, pp 592 –628 (2008)More Less
According to South African common law, movables attached permanently to land lose their independence and become part of the land; the landowner 'acquires' ownership of them through accession. In encroachment cases it has accordingly always been said that the affected landowner could demand that the encroaching structures be removed, but since the decision of the Orange Free State High Court in Rand Waterraad v Bothma 1997 (3) SA 120 (O) it appears as if the South African courts might be inclined, in certain instances, to leave the encroachment in place and order the encroaching neighbour to pay compensation instead. At least in some cases, this replacement of a property rule with a liability rule might appear just and it generally seems to conform to trends in other modern legal systems. In some cases South African courts have gone even further and ordered that the land affected by encroachment be transferred to the encroacher against payment of compensation. Quite apart from the fairness of replacing injunctive relief with compensation, this raises the further question whether such a forced sale of land is legitimate in terms of s 25 of the South African Constitution.