{"title":"The Role of Public Policy in King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021)","authors":"Rika Van Zyl","doi":"10.17159/1727-3781/2024/v27i0a15845","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15845","url":null,"abstract":"In King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021), the Constitutional Court considered whether a discriminatory out-and-out disinheritance clause in a private will could be declared unenforceable in terms of public policy. This opened private wills with disinheritance clauses to the scrutinising evaluation of public values despite freedom of testation. Although public policy has always been an elusive concept, South African public policy is infused with constitutional values to give more clarity on the content of public policy. In King a conflation emerged between constitutional rights, legislative violations and public policy values, however. The court grappled with the question of whether to apply the Constitution directly based on a violation in terms of section 9(4) or whether the section 8 of the Equality Act should be applied directly through the subsidiarity principle, or whether the discriminatory clause should be evaluated through the public policy lens. Where the conflicting values were weighed up there seem to be hints of subjective views to tip the scales in favour of one value over another. This is a concern when public policy is used to advance a subjective view of what the community values more, especially when it involves the disruption of the devolvement of a deceased's estate. This underlines the difficult application of public policy values, even in a constitutional democracy, when competing values are at play.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"45 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139830211","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":"Reflecting on Evictions and Unlawful Occupation of Land in South Africa: Where Do Some Gaps Still Remain?","authors":"Zsa-Zsa Boggenpoel, S. Mahomedy","doi":"10.17159/1727-3781/2023/v26i0a14687","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14687","url":null,"abstract":"The issue of unlawful occupation and homelessness has been a very prominent topic for many decades. While our approach to evictions and unlawful occupation has clearly shifted from a draconian approach under the Prevention of Illegal Squatting Act 51 of 1951 (hereafter PISA) to an approach that focusses on human rights under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE), there are still various aspects that potentially fall short in protecting the rights of the various stakeholders involved in these disputes. In particular, this paper focusses on three areas where PIE potentially falls short. In this regard we examine cases of the impossibility of eviction orders, our current understanding of the notion of \"home\", and whether or not PIE applies to both occupied and unoccupied structures. We also briefly explore issues relating to the non-implementation of PIE, especially in relation to the government's goal of preventing unlawful occupation. Central to these discussions is whether our current approach is sufficient and in line with constitutional obligations or whether we need to rethink our approaches to ensure that we do not undo the progress made since apartheid.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"51 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139611825","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 International Court System: A Solution to the Crisis in Investor-State Arbitration?","authors":"Tinyiko Lawrence Ngobeni","doi":"10.17159/1727-3781/2024/v27i0a14259","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14259","url":null,"abstract":"Most known investor-state disputes are referred to a form of international arbitration known as investor-state arbitration (ISA) or investor-state dispute settlement (ISDS). The rest are referred to domestic arbitration or litigation before the courts of host states. The International Centre for Settlement of Investment Disputes (ICSID) is the largest ISDS institution, having handled 829 out of 1190 cases by December 2021. However, in recent years the ISDS regime has faced challenges that have reached crisis proportions. States have responded to these challenges in different ways. For example, during 2014 the European Union (EU) intended to provide for ISDS in its anticipated trade agreements with the United States of America and Canada. In preparation the EU held public consultations wherein the public was invited to comment on whether ISDS could be used in these agreements. Over 90 per cent of the voters rejected the inclusion of ISDS therein. In response the EU abandoned ISDS and created a bilateral Investment Court System (ICS). The final death knell for ISDS in the EU came in 2018 and 2021 when the Court of Justice of the European Union (CJEU) ruled that ISDS among EU states is unlawful and incompatible with its legal order. This paper aims to assess the legal nature of the ICS, as well as whether the ICS can resolve the challenges that face ISDS worldwide. The paper concludes that firstly, the ICS is a hybrid of a court and a tribunal; secondly, that the ICS fails to fully address all the challenges faced by ISDS. It is a work in progress that must be interrogated further and be improved upon over time.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"113 30","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139616198","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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