- A-Z Publications
- Stellenbosch Law Review = Stellenbosch Regstydskrif
- Previous Issues
- Volume 22, Issue 2, 2011
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 22, Issue 2, 2011
Volume 22, Issue 2, 2011
The impact and consequences of Hassam v Jacobs NO on Polygynous Muslim Marriages [a discussion of Hassam v Jacobs NO 2009 11 BCLR 1148 (CC)]Author Munirah Osman-HyderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 233 –246 (2011)More Less
The non-recognition of Muslim marriages under South African legislation poses serious challenges for the many Muslims living in South Africa, especially for those who are only married according to Islamic Law. This note looks at how the court addressed this issue in the case of Hassam v Jacobs NO 2009 11 BCLR 1148 (CC). The note commences with a brief exploration of the prior jurisprudence pertaining to Muslim marriages, and then goes on to unpacking judgments of both the High Court and the Constitutional Court. In this note the author explores the controversy surrounding whether the High Court correctly applied the Muslim law pertaining to divorce, when the court concluded that a marriage did exist between the deceased and both the applicant and the third respondent, respectively, at the time of the deceased's death. The analysis then turns to look at the impact and consequences of both the decisions on polygynous Muslim marriages in South Africa, in particular whether the result of the case is congruent with the principles of succession as set out in the Shari'ah law. The note also discusses Nkabinda J's disclaimer in the judgment of the Constitutional Court regarding the recognition of Shari'ah law in South African courts, and addresses the question of whether the Constitutional Court could have better used this case as an opportunity to give full legal recognition to Muslim marriages.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 247 –271 (2011)More Less
There seem to be only two known and accepted facts regarding the modern lex mercatoria, firstly that the concept was introduced by Berthold Goldman in 1964 and secondly that the existence thereof has been questioned ever since.
The question therefore arises whether international trade is ruled by the so-called new lex mercatoria. In this regard there are two directly opposin views. One is that international trade has developed its own set of rules separate from those of the national states. These rules were developed specifically to comply with and satisfy the unique needs of international trade and are enforced through international arbitration. Another approach is that no such set of rules exists and that there is also no need for such a system if the the principles of conflict of laws (or international private law) are applied consistently. The proponents of this approach also argue that the lex mercatoria does not really exist, because it has not been linked to state sovereignty. In contrast to this it has been argued that the developments in the field of international mercantile law (more than the international law or the classical driot international public) may even find its application in the national law, as in the case of the 1980 United Nations Convention on Contracts for the International Sale of Goods. The development of other international instruments and treaties point towards the increasing harmonisation of international mercantile law and serves as an example of an international mercantile law that is fixed, certain, predictable and reasonable, yet still leaves room for the acknowledgment of the contractual freedom of the parties involved in the agreement.
This article sets out the different arguments on whether international trade is ruled by the so-called new lex mercatoria and proposes that there is a middle ground between these two directly opposing views.
Clarifying protection of spouses married in community of property? [discussion of Visser v Hull 2010 1 SA 521 (WCC) and Bopape v Moloto 2000 1 SA 383 (T)]Author Amanda BarrattSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 272 –284 (2011)More Less
This contribution examines section 15 of the Matrimonial Property Act 88 of 1984 with reference to two recent cases: Visser v Hull 2010 1 SA 521 (WCC) and Bopape v Moloto 2000 1 SA 383 (T). Section 15 is designed to protect the patrimonial interests of spouses married in community of property by requiring the consent of both spouses for certain transactions involving joint property. The contribution analyses the effectiveness of section 15 as used by the courts, and argues that section 15 does offer useful protection in certain circumstances. In both of the cases under discussion, the plaintiffs succeeded in recovering assets that had been alienated from the joint estate without the required consent. However, the courts did not identify the precise legal mechanisms of recovery. The contribution considers several possible mechanisms for redress including the rei vindicatio and other vindicatory actions; undue enrichment remedies such as the condictio sine causa specialis and the condictio ob turpem vel iniustam causam; delictual remedies based on fraud or theft (the condictio ex causa furtiva); and the actio Pauliana utilis.
Is xenophobia the right legal term of art? A Freudian and Kleinian response to Loren Landau on township violence in South AfricaAuthor Stu WoolmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 285 –305 (2011)More Less
The question that animates this paper is whether xenophobia is best understood in terms of the quasi-legal, quasi-constitutional, lexicon employed by members of our profession - and even our highest court - or whether some other explanation, that goes beyond our equality and dignity jurisprudence, would better assist us in understanding what is going on here in South Africa. To put it more pointedly, it may be that the quasi-legal, quasi-constitutional discourse that occupies members of our profession actually blocks a proper understanding of what is actually going on. What is going on? This article's two-fold thesis is hardly earth-shattering. First, following Freud, Ignatieff, Klein and Bion, I suggest that what we have experienced recently (and continue to experience) is just another manifestation of what has been described by Freud and Ignatieff, as the narcissism of minor difference, and by Klein and Bion as a group dynamic that reflects a paranoid-schizoid position. Second, I suggest that these well-developed psychoanalytic insights provide a more compelling explanation (than the label 'xenophobia') for the all-too-human toxic mix of self-love and aggression that has resulted in a minor form of ethnic cleansing in South Africa. This minor form of ethnic cleansing occurs and recurs because of (a) rather dire economic and social conditions in present day South Africa and (b) a political vacuum in which - in the absence of the state - petty politicians or just plain old thugs are able to manipulate some members of some extremely poor communities to act out their anxiety and rage in death and destruction. Only once those two lines of thought are connected will we be better able to understand and, hopefully, to avoid such incidents in the future. Legal mechanisms, as the responses of the SAHRC and the Constitutional Court have shown, have had limited positive effect. We can only begin to resolve the problem of township violence if government leaders listen to the disenfranchised and then deliver on our basic law's promise of adequate shelter, food, water, education, employment and healthcare. Until the tens of millions of disenfranchised South Africans feel "at home in the world", symptoms of such alienation, such as xenophobic attacks, are unlikely to disappear.
The minority defending the interests of the vulnerable [An evaluation of the minority judgment in NCSPCA Openshaw 2008 5 SA 339 (SCA)]Author Arthur Van CollerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 306 –313 (2011)More Less
This contribution considers the current status of non-human animals in South African law and the implications of the minority judgment by Cameron JA in the matter of NCSPCA v Openshaw 2008 5 SA 339 (SCA) thereon. Animals are still classified as legal objects in South African law and they therefore possess no rights. Only natural and juristic legal persons possess rights and duties to be protected and their interests are acknowledged in their own right. This status is a prerequisite for the granting of legal protection to an entity in its own right.
The animal welfare legislation in South Africa has been interpreted by the courts only to provide for the indirect protection of animals from cruel treatment. This indirect protection is intended to protect public morals and human interests without acknowledging the interests of animals. Cameron JA however found that the interests of animals are a factor to be considered where the Animal Protection Act 71 of 1962 is contravened. This is based on the recognition in animal welfare legislation that animals are sentient beings and therefore capable of experiencing suffering and that humans are capable of inflicting cruelty on animals.
The issues relating to animal cruelty should therefore be determined in law by way of a substantive analysis of the exact nature of animals as sentients. This investigation must include non-legal factors including an investigation into the medical, scientific and moral understanding of animals. The acknowledgement of animals as vulnerable and sentient beings has, at least, provided the basis for a future argument for the elevated legal status of animals based on a more accurate and holistic definition of sentience.
Section 6(1) of the Trust Propery Control Act 57 of 1988 revisited : establishing its nature and re-emphasising the validity of the "dual purpose" theoryAuthor Bradley SmithSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 314 –329 (2011)More Less
This contribution re-examines the validity of the "dual purpose" approach to the interpretation of section 6(1) of the Trust Property Control Act 57 of 1988, which approach was first proffered in 2007 and holds that the provision was enacted with a view to protecting both the public interest as well as the interests of the trust beneficiaries and that it should be interpreted accordingly. Recent academic criticism of this approach is considered, and, after having done so, the findings of the most authoritative decision to deal with section 6(1) thus far - namely the Supreme Court of Appeal's judgment in Lupacchini v Minister of Safety and Security 2010 6 SA 457 (SCA) - are evaluated in the light of the re-examination thus conducted. In particular, through holding that section 6(1) is a directory provision that requires substantive compliance, this contribution (i) re-emphasises the validity of the "dual purpose" approach as a means of ratifying contracts entered into by unauthorised trustees, and (ii) concludes that the application of the approach shows that unauthorised trustees who satisfy a capacity-defining condition imposed by the trust deed in terms of which they were appointed should be permitted to sue or be sued provided that they have a sufficient interest in the litigation.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 330 –351 (2011)More Less
This article deals, in a comparative manner, with the protection of the right to sexual orientation in South Africa and Uganda. It shows that the South African Constitution provides adequate protection of the right to freedom of sexual orientation. In Uganda, on the other hand, not only does the Ugandan Constitution expressly prohibit same sex marriages, but the Uganda Penal Code also criminalises homosexuality under the so-called "offences against the order of nature". Moreover, in the recent past, the spotlight has been firmly directed on Uganda due to its proposed Anti-Homosexuality Bill which, if enacted, would not only broaden the criminalisation of homosexuality, but would also violate several fundamental human rights norms.
The purpose of this paper is to highlight the disparate and contrasting approaches between Uganda and South Africa towards freedom of sexual orientation and to explore the lessons that Uganda could learn from South Africa in this regard. In so doing, the paper focuses on the constitutional and legal contexts within which the protection of the rights of LGBT people should be premised. Furthermore, the paper highlights the enormous and opprobrious social challenges and discriminatory hardships that LGBT people have to contend with both in Uganda and South Africa, and goes on to show the potential achievements of struggles through court action and the inadequacy of juridical strategies in isolation.
Author W.J. Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 352 –375 (2011)More Less
The Expropriation Bill B16-2008 was introduced to give effect to the constitutional provision on expropriation and related matters. When the Bill was tabled in 2008, it was met with public resistance that eventually led to the Bill being withdrawn.
This article will look at the history of the Expropriation Bill and the criticisms levied against the Bill. Some of the contentious issues that are discussed are the courts' power to determine compensation, the wide authority to expropriate property, the uncertainty about the meaning of public purpose and the determination of the compensation amount.
The article argues that the resistance to the Bill is alarmist, since, if the current Expropriation Act 63 of 1973 is interpreted in accordance with (the transformative spirit of) the Constitution, it will have the same results. It argues that with a few minor, mostly grammatical, changes the legislature can overcome most of the criticism and allow the Bill to be a legislative measure to achieve land and other related reforms.
A comparative analysis of the "connection" and the standing threshold requirements under section 24(2) of the Canadian Charter and section 35(5) of the Constitution of the Republic of South Africa, 1996Author Dane AllySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 376 –395 (2011)More Less
Section 35(5) of the Constitution of the Republic of South Africa, 1996, empowers the South African courts to exclude unconstitutionally obtained evidence in criminal trials. This section is modelled on the terms of section 24(2) of the Canadian Charter. Before a court may consider the substantive phase of the admissibility assessment (whether to receive or exclude the disputed evidence) it must be satisfied that the threshold requirements have been complied with.
This contribution consists of a comparative analysis of the "connection" and standing threshold requirements contained in sections 35(5) and 24(2). The "connection" threshold dictates that there must be an adequate link between the violation and the discovery of the evidence, while the standing threshold requires that an accused should demonstrate that his or her fundamental rights have been infringed, before he or she may challenge the admissibility of the disputed evidence. Failure to satisfy any of these threshold requirements entails that an accused may not rely on section 35(5). This article concludes that the South African and Canadian position in regard to the "connection" threshold is noticeably comparable, but that the Canadian approach relating to the standing threshold requirement should not be adopted by the courts of South Africa.
Redesigning the South African Unemployment Insurance Fund : selected key policy and legal perspectivesSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 396 –425 (2011)More Less
This contribution examines selected issues from a policy and legal perspective. Against the background of the broader social security reform agenda in South Africa and the vision of a comprehensive social security system, the contribution covers five key areas, namely alignment with international standards; the need to develop synergies with the rest of the social security system and for institutional reform and alignment; addressing certain material deficiencies and inconsistencies in the UIF legislation (with reference to removing the restriction on certain contributors to benefit and redefining the range of dependants); re-aligning the current UIF benefit regime to focus on loss of employment; and improving the UIF benefit regime through the introduction of standardised measures and other reforms (with reference to the indexation of benefits, utilising a minimum wage arrangement as a basis for benefit enhancement, adjusting the contribution rate and developing a streamlined adjudication framework). It is argued that complying with relevant international standards will move South Africa closer to be in a position to ratify these instruments, in particular ILO Convention 102 of 1952 on minimum standards in social security. Ample opportunity exists to introduce streamlined approaches in among others the collection of contributions and shared benefit payment facilities and arrangements, and the harmonisation of benefits. However, particular considerations and substantive constraints define and circumscribe the extent and content of the alignment of the UIF that is currently considered. These relate in particular to the compensation function of the UIF; its role as a labour market instrument; and the need to recognise unemployment insurance as a separate risk category with a ringfenced contribution and benefit regime framework. It should also be considered to separate unemployment insurance benefits in the strict sense of the word (ie benefits accruing to a beneficiary as a result of loss of employment) from unemployment-related benefits such as sickness, maternity and adoption benefits.
Author Portia NdlovuSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 426 –429 (2011)More Less
Of the latest books that have been produced in South Africa that relate to maritime law, Prof. J Hare's Shipping Law & Admiralty Jurisdiction in South Africa 2 ed, Juta & Co Cape Town (2009) covers the admiralty "seascape" much more broadly without being superficial on the core concepts that make the shipping industry efficacious. The book deals with many port related concepts in this manner. The book has considered the main areas of maritime law without overlooking the relevant influences and law in any of the areas which make the main points of the industry that are discussed in the book.
Author Hugh CorderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 430 –433 (2011)More Less
In the mid-1980s, in the context of emergency rule which tested the limits of judicial review of administrative action as the closest approximation to an unwritten bill of rights then known to our law, Barry Dean described our administrative law as a "dismal science'' (WHB Dean "Our Administrative Law: A Dismal Science?" (1986) 2 SAJHR 164 164).
Author Wouter De VosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 433 –435 (2011)More Less
The Casebook consists of fifteen chapters, which reflect the different stages of criminal proceedings. Each chapter contains excerpts from judgments in a number of selected cases dealing with issues that arose in the context concerned. Each excerpt is preceded by a brief summary of the facts in both English and Afrikaans. The excerpts are followed by critical notes by the authors, also in English and Afrikaans. In my view these notes are a very useful feature of the Casebook since they assist the reader to put the cases concerned in proper perspective.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 436 –438 (2011)More Less
Author Christo SmithSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 439 –440 (2011)More Less