Obiter最新文献

{"title":"SHOULD A COMPANY’S DIGNITY BE PROTECTED UNDER SECTION 10 OF THE CONSTITUTION? THE QUESTION IN Reddell v Mineral Sands Resources (Pty) Limited [2022] ZACC 38","authors":"Minenhle Alfred Nzimande, Razaana Denson, Joanna Botha","doi":"10.17159/obiter.v45i2.19246","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.19246","url":null,"abstract":"In Reddell v Mineral Sands Resources (Pty) Ltd ([2022] ZACC 38) (Reddell), the Constitutional Court considered whether section 10 of the Constitution of the Republic of South Africa, 1996 (the Constitution), as read with section 8(4), should be interpreted to protect the dignity of juristic persons (in this case, mining companies). The majority and minority judgments arrived at conflicting decisions on the point. Unterhalter AJ, for the minority, held that juristic persons should be protected under section 10, while Majiedt J, for the majority, held otherwise. The majority also developed the common law of defamation to limit the circumstances in which a juristic person may succeed in a claim for general damages for non-patrimonial loss.The authors make two claims. First, it is argued that the minority judgment correctly interpreted the nature and purpose of section 10 (the guarantee of human dignity) when read with section 8(4) of the Constitution, which provides that juristic persons are entitled to bear the rights in the Bill of Rights as required by the nature of the right and the nature of the juristic person in issue. It is asserted that the two sections can be interpreted to entitle companies to rely on section 10 of the Constitution to protect their right to dignity, encompassing their good name and reputation. Secondly, it is argued that the majority’s development of the common law of defamation – to create a special exception for cases where a juristic person sues for general damages – was unnecessary, and has created legal uncertainty.The case note proceeds as follows. First, the authors introduce the facts of the case, and then explore the ratione decidendi of both judgments. Secondly, the note addresses the ambit and scope of human dignity as a constitutional right, followed by the applicable principles governing constitutional interpretation, including the role of the heading of a statutory provision. This is followed by a discussion of the law of defamation concerning whether a juristic person can claim damages for an infringement to its reputation under the actio iniuriarum. The legal position prior to the judgment in Reddell is compared to that which now applies. Finally, the decision is evaluated with reference both to the reasoning used by the majority and minority respectively and the significance of the outcome of the case for our law.A detailed discussion of the constitutionality of awarding general damages to corporations for defamation on the basis that such claims unjustifiably limit section 16 of the Constitution (the right to freedom of expression) falls outside the scope of this case note.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":"15 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141810141","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}

{"title":"CAN THE DEATH PENALTY STILL BE CONSIDERED A “CRUEL, INHUMANE AND DEGRADING PUNISHMENT” IN THE FACE OF SOUTH AFRICAN PRISON CONDITIONS?","authors":"Llewelyn Gray Curlewis, Katelyn-Mae Carter","doi":"10.17159/obiter.v45i2.16858","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.16858","url":null,"abstract":"The use of the death penalty as a form of punishment can be traced back to the earliest human civilisations. South Africa was no stranger to this punishment, and it was only abolished here in 1995. South Africa accepted this form of punishment through its colonisation by the English. The Union of South Africa made use of hangings throughout the 1900s; an average of 4 000 executions were implemented over an 80-year period (Cronje (ed) “Capital Punishment in South Africa: Was Abolition the Right Decision? Is There a Case for South Africa to Reintroduce the Death Penalty?” South African Institute for Race Relations 2016 1. In 1989, President FW de Klerk placed a moratorium on the physical implementation of executions during the negotiations of the Convention for a Democratic South Africa (Cronje South African Institute for Race Relations 1). The Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) was adopted during these negotiations; while it contained a comprehensive bill of rights, it did not address the use of capital punishment.The fate of the death penalty was left to the courts to address in 1995 in the landmark case of S v Makwanyane and Mchunu ((1995) 6 BCLR 665). Chaskalson J stated that section 277(1)(a) of the Criminal Procedure Act (51 of 1977) was unconstitutional with reference to the following rights: section 9 (life); section 10 (dignity) and section 8(1) (equality before the law). He stated that the reasoning for this decision was that the imposition of the death penalty amounted to a cruel, inhumane or degrading punishment inconsistent with the right to life and human dignity. Moreover, this punishment cannot be reversed in the case of error or enforced in a manner that is not arbitrary. However, in the 28 years since this decision was made, South Africa has experienced an escalation in violent and sexual crimes, including murder, robbery with aggravating circumstances, rape and kidnapping. With this in mind, South Africans are left to question whether our courts should be implementing more serious sentences for these crimes and whether the decision made by Chaskalson J was correct.\u0000This note focuses specifically on the understanding of the term “cruel, inhumane and degrading punishment”, and examines the present conditions of life imprisonment in a South African prison in order to determine whether the death penalty can still be considered a non-viable punishment (based on the interpretation of this term).","PeriodicalId":485606,"journal":{"name":"Obiter","volume":"118 35","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141656773","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}

{"title":"THE (IN)EFFECTIVENESS OF REQUIRING PRIOR EXHAUSTION OF LOCAL REMEDIES IN INVESTMENT ARBITRATION","authors":"Samantha Smit, Louis Koen","doi":"10.17159/obiter.v45i2.15516","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.15516","url":null,"abstract":"The international investment-law regime continues to be mired in a legitimacy crisis that has given rise to important multilateral reform efforts through the United Nations Commission on International Trade Law. A key reform proposal is centred on the introduction of an exhaustion-of-local-remedies requirement. This article critically evaluates the exhaustion-of-local-remedies rule in the context of international investment law, and challenges its interpretation where such clauses already exist in contemporary investment law. The article concludes that investment tribunals have subverted these clauses in various ways, and considers the legal challenges states would need to address to best prevent the subversion of these clauses by investment tribunals in future.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670187","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}

{"title":"DOES SECTION 9(2) OF THE DIVORCE ACT 70 OF 1979 PROVIDE ADEQUATE PROTECTION FOR AN ILL SPOUSE?","authors":"Siyabonga Sibisi","doi":"10.17159/obiter.v45i2.19083","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.19083","url":null,"abstract":"In simple terms, section 9 of the Divorce Act (70 of 1979) provides for forfeiture of patrimonial benefits (forfeiture) in divorce proceedings if the ground for the divorce is the irretrievable breakdown of a marriage. It was important for the legislature to specify that forfeiture may only be made where the ground for a divorce is the irretrievable breakdown of the marriage (s 3(a) read with s 4(1)), because the latter is not the only ground for a divorce in South African law. A marriage may also be dissolved by a decree of divorce on the grounds of mental illness or continuous unconsciousness (s 3(b) read with s 5). Section 9(2) further clarifies the legal position by providing that forfeiture may not be ordered against the defendant where the grounds for a divorce are mental illness or continuous unconsciousness. Obviously, the purpose behind section 9(2) is to provide protection for the mentally ill or unconscious spouse in divorce proceedings. However, the protection provided is lacking in two respects. First, as is shown below, mental illness and continuous unconsciousness, as grounds for a divorce, do not cover all defendants who suffer from mental illness or continuous unconsciousness. Defendants who are mentally ill or unconscious, but fall outside the ambit of section 5, are not protected by section 9(2). Consequently, a forfeiture order becomes possible against them. Secondly, as is shown below through case law, it appears possible to prosecute a divorce against a mentally ill or a continually unconscious spouse under section 4(1) – that is, on the basis of an irretrievable breakdown of the marriage. In this case, a forfeiture is possible and the protection in section 9(2) is circumvented.In light of the above, the adequacy of the protection in section 9(2) is questioned. This note discusses the adequacy of the protection in section 9(2). It also seeks to recommend ways in which the defect in this provision may be remedied. The grounds for a divorce in South Africa are discussed and mental illness and continuous unconsciousness are contextualised within the broader divorce jurisprudence. Thereafter follows a more focused discussion on mental illness and continuous unconsciousness as grounds for a divorce, as provided for in section 5. These discussions also reflect on the arguments by other academics, including arguments that section 5 should be expunged from the Divorce Act. Forfeiture is discussed briefly. In conclusion, the question whether section 9(2) provides adequate protection is considered together with the author’s recommendations.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 77","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670713","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}

{"title":"REGULATION OF THE LEGAL PRACTITIONERS’ FIDELITY FUND INVESTMENTS IN NAMIBIA","authors":"Marvin Awarab","doi":"10.17159/obiter.v45i2.15716","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.15716","url":null,"abstract":"In the Namibian context, the Legal Practitioners’ Fidelity Fund is created by statute, and is administered by a board of control known as the Legal Practitioners’ Fidelity Fund Board of Control.1 In terms of the law, the Board of Control (the Board) has the mandate to invest moneys of the fund from time to time if, in the opinion of the Board, such funds are not immediately required for other purposes.2 Market failures are continuously experienced globally, and may lead to failed investments. This reality requires investors to take proper steps to ensure that their investments are sound. The soundness of an investment rests in the possibility of increasing investment returns and reducing possible risk of investment failure. The Legal Practitioners Act does not provide any steps to follow to guard against the failure of fidelity fund investments. The Act also fails to indicate the extent to which the Board or any other person may be held accountable for failed investments. The Rules of the Law Society of Namibia are equally silent on this matter. This article seeks to investigate the extent to which the Board may be held liable for any failed investments. The article also attempts to establish various steps that should be followed by the Board to prevent or avoid the failure of fidelity fund investments.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670461","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}

{"title":"SOCIAL SECURITY FOR PERSONS WITH DISABILITIES IN SOUTH AFRICA: COMPLIANCE WITH ARTICLE 28(2) OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES","authors":"Yvette Basson","doi":"10.17159/obiter.v45i2.16019","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.16019","url":null,"abstract":"The United Nations Convention on the Rights of Persons With Disabilities (CRPD) was adopted in 2006 in order to address continued marginalisation of persons with disabilities. Since the adoption of the CRPD, the rights of persons with disabilities have received more scrutiny than previously. The Preamble to the CRPD states that “persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world”. The founding principle of the CRPD is that persons with disabilities are entitled to participate fully and equally in society, irrespective of their individual disability. To achieve this goal, the CRPD provides for a number of rights that must be implemented by States Parties that have signed and ratified it. The rights included in the CRPD contribute towards the achievement of full and equal participation in society. Article 28 of the CRPD guarantees two rights that contribute towards the achievement of full and equal participation in society of persons with disabilities. These are the right to an adequate standard of living, and the right to social protection.This article establishes the scope and content of the right to social security as a component of the rights guaranteed in article 28. To this end, the obligations created by the CRPD related to social security provided by States Parties are established. The current South African social security system pertaining to persons with disabilities is discussed and analysed to determine whether it is compliant with the obligations created in article 28 of the CRPD. Finally, shortcomings in the existing social security system are identified and potential remedies suggested to address these.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 97","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141671031","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}

{"title":"JUDICIAL CASE FLOW MANAGEMENT “CHECKPOINT”: HOW FAR HAVE WE GONE?","authors":"Selby Mfanelo Mbenenge","doi":"10.17159/obiter.v45i2.19028","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.19028","url":null,"abstract":"This article examines the introduction of judicial case flow management into South African law from a historical perspective, its initial failures, resistance and fundamental principles. It sets out the judicial attempts to regulate the management of litigious matters through the Uniform Rules of Court, particularly rule 37A, and the impact of the introduction of the era of norms and standards on case flow management. Through revelations in practice of the positive progress achieved in judicial case flow management, the central argument is that a more inquisitorial role in the case flow management system is key to ensuring access to justice.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 86","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670636","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}

{"title":"THE COMPANIES ACT 71 OF 2008 DOES NOT OUST THE COMMON-LAW DERIVATIVE ACTION FOR CLOSE CORPORATIONS Naidoo v The Dube Tradeport Corporation [2022] ZASCA 14","authors":"Darren Subramanien","doi":"10.17159/obiter.v45i2.19086","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.19086","url":null,"abstract":"The Companies Act 71 of 2008 (2008 Act) abolished the common-law derivative action for companies; section 165 of the 2008 Act replaced it with the statutory derivative action (Griggs “The Statutory Derivative Action: Lessons That May Be Learnt From the Past!” 2002 University of Western Sydney Law Review par 1.2; Coetzee “A Comparative Analysis of the Derivative Litigation Proceedings Under the Companies Act 61 of 1973 and the Companies Act 71 of 2008” 2010 Acta Juridica 298). The question that remained was what impact this would have on common-law rights for close corporations that had been incorporated before the commencement of the 2008 Act but which have not converted to companies under that Act. The Supreme Court of Appeal (SCA) judgment in Naidoo v The Dube Tradeport Corporation ([2022] ZASCA 1) provides much-needed clarity on the status of the common-law derivative action for close corporations. The case also provides guidance on how a court will assess whether knowledge of information can be imputed to a third party in their dealings with a close corporation.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 71","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670719","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}

{"title":"ESORFRANKI PIPELINES (PTY) LTD v MOPANI DISTRICT MUNICIPALITY [2022] ZACC 41","authors":"André Mukheibir","doi":"10.17159/obiter.v45i2.16838","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.16838","url":null,"abstract":"The Constitutional Court, in the recent case of Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality ([2022] ZACC 41), had to decide whether a tenderer, whose tender failed as a result of the intentional misconduct of the State, could claim damages in delict from the State for loss of profits (par 1). \u0000The High Court and the Supreme Court of Appeal both applied the res iudicata rule, holding that the matter had already been raised. In both instances the courts also found that wrongfulness and causation had not been proven. \u0000The Constitutional Court, in applying the principle of subsidiarity, held that wrongfulness had not been proven. \u0000The purpose of the case note is to show that the reasons advanced by the courts for not allowing the delictual claim, are based on incorrect applications of the legal principles.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 28","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670572","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}

{"title":"CHERISHING CUSTOMARY LAW: THE DISPARITY BETWEEN LEGISLATIVE AND JUDICIAL INTERPRETATION OF CUSTOMARY MARRIAGES IN SOUTH AFRICA","authors":"Charles Maimela, Ntebo Lauretta, Morudu","doi":"10.17159/obiter.v45i2.19045","DOIUrl":"https://doi.org/10.17159/obiter.v45i2.19045","url":null,"abstract":"The constitutional recognition of customary law in South Africa has opened a new conduit for the development of customary law. With the courts taking the lead in addressing customary law disputes, the interpretation of customary law has come with setbacks. This article argues that the development and reform strides made by the judicial and legislative institutions appear of modest benefit to the people they strive to protect, advance and regulate, especially during interpretation and reform. The article seeks to confront the judicial interpretation of customary law based on the recent High Court case of Sengadi v Tsambo. The court had to consider an application for four types of relief. The court deviated from the factual nature of customary law in relation to a spouse’s burial rights when it concluded that a valid customary marriage and all the validity requirements outlined under the Recognition of Customary Marriages Act had been met. Indicating the factuality of customary law when it relates to marriage and its link to burial rights, “that a male descendant of the household belongs to his paternal family, his place and existence being one with his paternal roots. His right to belong to his paternal family is absolute and customary.” The above ignored, yet crucial cultural practice informs the interpretation of customary law under the constitutional guise. The Constitution affirms the right to practise and observe one’s culture. In Sengadi v Tsambo, to determine the burial rights of a spouse, the court employed a narrow and strict interpretation instead of interpreting the cultural practice of bridal integration against a holistic customary background. The article advocates for courts to adopt purposive interpretational approaches in reforming customary law. It emphasises for the consideration of the interpretational rules and theoretical frameworks proposed by legal scholars to reflect the factual nature of customary law. As the positivist approach to customary law undermines the pluralistic nature of the South African legal system. The article pioneers for the recognition of living customary law as holistic, and an integral normative system of indigenous people of South Africa, while taking into account the history and context of this legal system.","PeriodicalId":485606,"journal":{"name":"Obiter","volume":" 71","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141670828","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}