South African law journal最新文献_第2页

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position 为南非未婚的亲密生活伴侣提供关系后权利——法律立场的比较分析

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a8

B. Clark, Belinda van Heerden

{"title":"Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position","authors":"B. Clark, Belinda van Heerden","doi":"10.47348/salj/v140/i3a8","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a8","url":null,"abstract":"Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.","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":"70824610","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

Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa? 是否应该修改《电子通信和交易法》，使其包括南非出售不动产的电子签名?

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a5

Nirissa Reddy

{"title":"Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa?","authors":"Nirissa Reddy","doi":"10.47348/salj/v140/i4a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a5","url":null,"abstract":"Electronic signatures have become a core feature of digital transformation. Organisations can now transact with greater ease, regardless of physical distance or national borders. The Electronic Communications and Transactions Act 25 of 2002 facilitates electronic communications and transactions using electronic documents and signatures in South Africa. Electronic contracts and signatures are legally binding and constitute valid and admissible evidence in legal proceedings, although there are a few exceptions. One of the exclusions concerns agreements for the sale of immovable property. The Alienation of Land Act 68 of 1981, which regulates the sale of land, seeks to promote legal certainty as to the authenticity and contents of these contracts to limit instances of fraud and litigation. This article examines the risk associated with fraud and the case of Borcherds v Duxbury 2021 (1) SA 410 (ECP). In this case, contrary to legislation, the court accepted an electronic signature in a contract for the sale of immovable property. I recommend that the relevant legislation be amended to validate the use of advanced electronic signatures for the sale of immovable property. A holistic approach to electronic signatures is the only way to embrace an inevitable and complete digital transformation.","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":"135447023","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

A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa 南非股东批准公司政治捐款和支出的立法框架

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a6

Vela Madlela

{"title":"A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa","authors":"Vela Madlela","doi":"10.47348/salj/v140/i1a6","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a6","url":null,"abstract":"Political donations and expenditure by companies raise serious concerns due to poor corporate governance practices, which include the lack of accountability of directors to shareholders. The shareholders’ right to vote is one of the company-law mechanisms that may be used to control the directors’ discretion regarding political donations and expenditure. However, the Companies Act 71 of 2008 does not give shareholders the right to approve a company’s political donations or expenditure. Consequently, the directors enjoy a wide general discretion regarding a company’s political donations and expenditure. The article examines certain key policy considerations concerning the introduction of prior shareholder approval of political donations and expenditure by companies in South Africa. It examines the legislative requirements regarding shareholder approval of political donations and expenditure in the UK under Part 14 of the Companies Act, 2006, the philosophical rationale underpinning these legislative requirements, and the extent to which the introduction of shareholder approval of political donations and expenditure in the UK has achieved the underlying objectives of promoting transparency and accountability. The article then advocates for the introduction of the requirement for prior shareholder approval of political donations and expenditure under the South African Companies Act, and provides detailed recommendations on how such requirements could be implemented.","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":"70823411","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

Notes: Municipal crisis: A justifiable limitation of political rights 注:市政危机:对政治权利的合理限制

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a3

M. Williams

{"title":"Notes: Municipal crisis: A justifiable limitation of political rights","authors":"M. Williams","doi":"10.47348/salj/v140/i1a3","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a3","url":null,"abstract":"Section 56A of the Local Government: Municipal Systems Act 32 of 2000 provided for the limitation of the political rights of municipal managers and managers directly accountable to municipal managers. The South African Municipal Workers Union (SAMWU) challenged the constitutionality of s 56A on both procedural and substantive grounds in the High Court. The substantive ground related to whether s 56A was a justifiable limitation of the s 19(1) right to make free political choices. Having found for SAMWU on procedural grounds the High Court did not decide the substantive ground. The Constitutional Court confirmed the High Court’s order. The nett result is that there has not been a judicial pronouncement on whether s 56A is a justifiable limitation of political rights. The successor provision to s 56A is s 71B, which was inserted into the Act by s 9 of the Local Government: Municipal Systems Amendment Act 3 of 2022. This provision provides for the limitation of the political rights of municipal staff members. In the absence of a judicial pronouncement on this issue, this note applies a justification analysis in terms of s 36 of the Constitution and finds that s 71B is a justifiable limitation of the right to make free political choices.","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":"70823831","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

Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze 南非学院法学理论研究方法论的再认识:在迷宫中穿行

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i2a5

Mkhululi Nyathi

{"title":"Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze","authors":"Mkhululi Nyathi","doi":"10.47348/salj/v140/i2a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a5","url":null,"abstract":"With the focus in the South African higher education landscape shifting towards research output, it is imperative that law schools equip postgraduate law students with proper legal research skills for them to carry out their legal research effectively. While the doctrinal legal research methodology has always been used in legal research and is well suited for the discipline of law, it has been subjected to serious criticism for some time, with some scholars labelling it as arrogant, non-objective and lacking in academic flair. Those who criticise the doctrinal legal research method tend to prescribe for the discipline of law research methodologies popular in other disciplines, such as the qualitative and quantitative methodologies that are popular in the social sciences. While a legal scholar doing interdisciplinary legal research is free to use such methodologies, these methodologies may not be suitable for classical legal research. The doctrinal legal research methodology remains the most appropriate methodology for legal research, as it is concerned with solving legal problems through the legal analysis of legal norms. The sources of legal norms are internally determined by the discipline itself and cannot be identified through qualitative and quantitative research.","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":"70824028","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}

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Book Bench 2 书柜2

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a11

H. Corder

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Notes: A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC) 注:呼吁设立专门的丧失抵押品赎回权法庭和单独的丧失抵押品赎回权名册——南非人权委员会诉南非标准银行(CC)案分析

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a2

Ciresh Singh

{"title":"Notes: A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)","authors":"Ciresh Singh","doi":"10.47348/salj/v140/i3a2","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a2","url":null,"abstract":"In South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC), the Constitutional Court held that a bank is not obliged to take a foreclosure matter to the magistrate’s court, even if the magistrate’s court has jurisdiction over the matter. The apex court confirmed that a court is not entitled to decline to hear a matter properly brought before it because another court has concurrent jurisdiction. Before this decision, the Gauteng and Eastern Cape Divisions of the High Court both found that the High Court was entitled to decline to hear a matter if the matter fell within the jurisdiction of a magistrate’s court. These decisions were taken on appeal to the Supreme Court of Appeal, which upheld the appeal and found that the High Court has no power to refuse to hear a matter falling within its jurisdiction on the ground that another court has concurrent jurisdiction. The Constitutional Court has now confirmed the decision by the Supreme Court of Appeal, finding that complex matters such as foreclosure applications deserve more judicial scrutiny, and ought to be heard by the High Court.","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":"70824523","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

Notes: In defence of the Pretoria Crits 注:为比勒陀利亚危机辩护

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i3a4

E. Zitzke

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Notes: Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN 注:渐进的，但有问题的:在sv SN中拆包治疗顺序和句子

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a2

Delano Cole van der Linde

{"title":"Notes: Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN","authors":"Delano Cole van der Linde","doi":"10.47348/salj/v140/i4a2","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a2","url":null,"abstract":"The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.","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":"135447022","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

Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd 对保尔森诉滑结投资777 (Pty) Ltd案中英美法系发展与三权分立原则之紧张关系的反思

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a7

Ndivhuwo Ishmel Moleya

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