South African law journal最新文献

Notes: Murder and fraud for inheritance: Smit v The Master of the High Court, Western Cape 注:谋杀和欺诈继承:Smit诉西开普省高等法院院长

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a1

M. Paleker

引用次数: 0

Clarifying the constitutional status of the National Prosecuting Authority 澄清国家检察机关的宪法地位

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i2a7

Loammi Wolf

{"title":"Clarifying the constitutional status of the National Prosecuting Authority","authors":"Loammi Wolf","doi":"10.47348/salj/v140/i2a7","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a7","url":null,"abstract":"Chapter 8 of the Constitution aligns the status of the National Prosecuting Authority (‘NPA’) to the separation of powers typical for constitutional states where two principal organs developed in the third branch of state power during the midnineteenth century to refine Montesquieu’s model of separation of powers. The organs for the ‘administration of justice’ consist of the judiciary (adjudication) and prosecutors (prosecuting crime). Therefore, the status of the NPA entails both structural and functional independence from the executive. The reasons for the NPA’s failures are manifold and complex. The main reason is that the political elite continued to treat the NPA as a part of the executive branch, partly perpetuating the practice under the former Westminster constitutions and partly due to the ANC’s policy of ‘democratic centralism’. This has resulted in a chaotic state organisation of criminal justice where the powers allocated to prosecutors by s 179(2) are not clearly demarcated from policing powers under s 205(3) of the Constitution. For the proper functioning of the NPA to uphold the rule of law, it is important to delineate clearly the powers of the NPA from those of the judiciary, the executive — especially the Minister of Justice — the President, the police, and the watchdog functions of Chapter 9 institutions.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference? 伊斯兰法遗嘱是否违反了普通法中禁止授权遗嘱权和参照成立公司的规定?

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a7

F. Essop

{"title":"Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?","authors":"F. Essop","doi":"10.47348/salj/v140/i3a7","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a7","url":null,"abstract":"Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824532","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Book Review: Rebecca J Cook (ed) Frontiers of Gender Equality — Transnational Legal Perspectives (2023) 书评:丽贝卡·J·库克(主编)《性别平等的前沿——跨国法律视角》(2023)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a11

Emerita Rashida Manjoo, Pretty Mubaiwa

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Book Review: Sangwani Patrick Ng’ambi & Chanda Chungu Contract Law in Zambia 2 ed (2021) 书评:Sangwani Patrick Ng’ambi & Chanda Chungu《赞比亚合同法》2版(2021)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a11

Robin Cupido

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Book Review: Scott L Rodgers The Mindful Law Student: A Mindfulness in Law Practice Guide (2022) 书评:斯科特·L·罗杰斯正念法律学生:法律实践指南中的正念(2022)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a10

Jenny Canau, R. Thomas

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Bolstering creditor and shareholder protection under the South African and Zimbabwean amalgamation or merger regulatory regimes: Suggestions for company-law reform 南非和津巴布韦合并或合并监管制度下加强债权人和股东保护:公司法改革建议

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a6

Justice Mudzamiri

{"title":"Bolstering creditor and shareholder protection under the South African and Zimbabwean amalgamation or merger regulatory regimes: Suggestions for company-law reform","authors":"Justice Mudzamiri","doi":"10.47348/salj/v140/i4a6","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a6","url":null,"abstract":"This article critically assesses the efficacy of the South African and Zimbabwean merger regulatory regimes in providing suitable shareholder and creditor protection. The article seeks to balance competing goals. On the one hand, merger opportunities should be promoted by reducing regulatory barriers to merger regulation by, for instance, facilitating the implementation of mergers through a less complex procedure and with reduced court interference. On the other hand, the merger regimes ought to guarantee the appropriate and adequate protection of creditors and shareholders, including minority shareholders’ interests. The article focuses on the two comprehensive target shareholder protections — participatory and remedial rights — and two creditor remedies — the creditors’ notice and the solvency and liquidity test. The study establishes that South Africa offers better protection to creditors and shareholders than Zimbabwe. However, in some respects, both jurisdictions can seek lessons from other progressive jurisdictions, including the United States of America, with the state of Delaware as a particular example, and the United Kingdom.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act 根据《海事管辖权管理法》，南非“海事索赔”的分类

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a8

Amy Harpur Gevers, Vishal. Surbun

{"title":"The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act","authors":"Amy Harpur Gevers, Vishal. Surbun","doi":"10.47348/salj/v140/i1a8","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a8","url":null,"abstract":"The definition of ‘maritime claim’ in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the ‘legally relevant connection’ test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the ‘legally relevant connection’ test in the context of both cases to assess whether it is consistent with the definition of ‘maritime claim’. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Wrongfulness in the South African law of defamation 南非诽谤法中的不法行为

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i2a3

A. Fagan

{"title":"Wrongfulness in the South African law of defamation","authors":"A. Fagan","doi":"10.47348/salj/v140/i2a3","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a3","url":null,"abstract":"According to some South African delict scholars, the South African law of defamation makes the wrong fulness of a defamatory statement turn on two conditions: first, that the statement caused reputational damage; and, secondly, that the damage caused was not outweighed by the achievement of some greater good. This article proposes an alternative view. According to it, the wrong fulness of a defamatory statement turns on two very different conditions. The first is that the statement represented the defamed person (the plaintiff) as having a worth which is less than the worth which the person ought to be estimated to have. The second is that the person making the statement (the defendant) intended this. The article starts by raising two objections to the scholars’ view. One is that it cannot explain the fact that a defamatory statement can be false yet lawful. The other is that it cannot explain the fact that a defamatory statement may be found to be wrong ful even though it caused no reputational damage. After this, the article goes on to discuss and defend the alternative view’s two conditions — that is, the ‘representation condition’ and the ‘intent condition’. The latter is likely to be the more controversial, as it flies in the face of a scholarly dogma to the effect that wrong fulness does not in any way depend on fault. However, as the article demonstrates, it is impossible to make sense of the wrong fulness-negating defences of privileged occasion, fair comment, and reasonable publication, unless we accept the intent condition.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

International best practice and a revised Code for Responsible Investing in South Africa 国际最佳做法和经修订的南非负责任投资守则

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a6

Natania Locke

{"title":"International best practice and a revised Code for Responsible Investing in South Africa","authors":"Natania Locke","doi":"10.47348/salj/v140/i3a6","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a6","url":null,"abstract":"The much anticipated Second Code for Responsible Investing in South Africa (‘CRISA 2’) was published in September 2022. This article explores the evolution of the soft-law environment in which the code operates and reaches the conclusion that the revision was both timely and necessary. A comparison between CRISA 2 and recent trends in investor stewardship codes and regulation shows that CRISA 2 has kept pace in some respects but still lags in others. The move to ‘apply and explain’ falls in line with King IV and the approach of the UK Stewardship Code 2020. The extension of its application to all investment types rather than solely shares is an improvement. The code retains its focus on responsible investment — an aspect only recently adopted internationally in comparative codes — but has opted not to shift to sustainability language despite contemplating this approach in the draft. This may have been a missed opportunity. Aspects that could improve include considering engagement outside of voting; more express duties for service providers, including proxy advisors; the need to ascertain client and beneficiary needs; and more accessible language. Annual reporting and oversight remain with an industry body, which makes greater reporting doubtful.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824408","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1