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1
Barnard, Jacolien. "The Influence of the Consumer Protection Act 68 of 2008 on the Common Law Warranty Against Eviction: A Comparative Overview." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 5 (June 1, 2017): 347. http://dx.doi.org/10.17159/1727-3781/2012/v15i5a2527.
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The implementation of the Consumer Protection Act 68 of 2008 (CPA) has great implications for the South African common law of sale. In this contribution the influence of the CPA on the seller’s common law duty to warrant the buyer against eviction is investigated. Upon evaluation of the relevant provisions of the CPA, the legal position in the United Kingdom – specifically the provisions of the Sales of Goods Act of 1979 – is investigated.
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Mongalo, Tshepo H. "Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin." South African Law Journal 138, no. 3 (2021): 508–21. http://dx.doi.org/10.47348/salj/v138/i3a3.
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This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.
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Kruger, Hester B., and Hennie Oosthuizen. "South Africa – Safe Haven for Human Traffickers? Employing the Arsenal of Existing Law to Combat Human Trafficking." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (May 22, 2017): 282. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2466.
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Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon.
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Zitzke, Emile. "Transforming age-related capacity for fault in delict." South African Law Journal 138, no. 2 (2021): 369–98. http://dx.doi.org/10.47348/salj/v138/i2a5.
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For a wrongdoer to have ‘capacity for fault’ in the South African law of delict, it is widely accepted that the wrongdoer must possess the ability to distinguish between right and wrong (cognition) and the ability to act in accordance with that appreciation (conation). One factor that affects a person’s capacity for fault is youthfulness. There are two schools of thought on age-related capacity for fault in the South African law of delict. On the one hand, Van der Walt & Midgley are of the view that the common law stipulates the rules regulating this issue. In terms of this paradigm, the minimum age for capacity for fault is seven years. On the other hand, Neethling & Potgieter were, until very recently, of the view that the Child Justice Act should apply to the determination of a child’s capacity for fault. At the time of Neethling & Potgieter’s earlier writing, the minimum age for capacity for fault under the Act was ten years. Since June 2020, this age has been raised to twelve. In this article, the tension between these two schools of thought is analysed, and an attempt is made to resolve the tension through a proposal for a transformative, constitutional development of the common law of delict.
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Richter, M. L., W. D. F. Venter, and A. Gray. "Enabling HIV self-testing in South Africa." Southern African Journal of HIV Medicine 13, no. 4 (October 4, 2012): 186. http://dx.doi.org/10.4102/sajhivmed.v13i4.114.
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In a South African context, we consider the implications of the United States Food and Drug Administration’s recent approval of the OraQuick HIV self-testing kit. We argue that current law and policy inhibit the roll-out of accurate and well-regulated self-testing kits, and create a loophole for sale in supermarkets, but not pharmacies.
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von Solms, Suné. "Mitigating information disclosure from point-of-sale devices in South Africa." Computer Fraud & Security 2016, no. 5 (May 2016): 7–15. http://dx.doi.org/10.1016/s1361-3723(16)30045-8.
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Berat, Lynn, Reinhard Zimmermann, and Daniel Visser. "Southern Cross: Civil Law and Common Law in South Africa." International Journal of African Historical Studies 33, no. 1 (2000): 169. http://dx.doi.org/10.2307/220286.
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Zimmermann (Hrsg.), Reinhard, and Daniel Visser (Hrsg.). "Southern Cross. Civil Law and Common Law in South Africa." Verfassung in Recht und Übersee 31, no. 1 (1998): 101–3. http://dx.doi.org/10.5771/0506-7286-1998-1-101.
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Parker, Peter. "South Africa and the Common Purpose Rule in Crowd Murders." Journal of African Law 40, no. 1 (1996): 78–102. http://dx.doi.org/10.1017/s0021855300007142.
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The elections in South Africa are only a start in that nation's task of purging itself of the inheritance of white minority rule. However successfully the democratic process endows organs of state with legitimacy in international forums, by and of itself the fact of black enfranchisement will not change black attitudes to a legal system which for decades willingly implicated itself in the systematic oppression of the non-white majority.
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Judin, J. Michael. "The King Reports and the common law in South Africa." Journal of Global Responsibility 11, no. 2 (May 28, 2020): 167–72. http://dx.doi.org/10.1108/jgr-10-2019-0093.
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Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.
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Faris, John Andrew. "African Customary Law and Common Law in South Africa: Reconciling Contending Legal Systems." International Journal of African Renaissance Studies - Multi-, Inter- and Transdisciplinarity 10, no. 2 (July 3, 2015): 171–89. http://dx.doi.org/10.1080/18186874.2015.1107991.
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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.
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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.
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Hausmaninger, Herbert. "Southern Cross. Civil Law and Common Law in South Africa, hg. von Reinhard Zimmermann/Daniel Visser." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 116, no. 1 (August 1, 1999): 621. http://dx.doi.org/10.7767/zrgra.1999.116.1.621.
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Young, Stephen. "Consent, custom and international law in South Africa: What Australian lawmakers could learn." Alternative Law Journal 44, no. 3 (May 29, 2019): 197–202. http://dx.doi.org/10.1177/1037969x19853853.
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This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.
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Arban, Erika, and Adriano Dirri. "Aspirational Principles in African Federalism: South Africa, Ethiopia and Nigeria Compared." African Journal of International and Comparative Law 29, no. 3 (August 2021): 362–82. http://dx.doi.org/10.3366/ajicl.2021.0371.
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Finding a balance between diversity and social cohesion is a common concern in constitutional design: in divided societies, such a balance has often been sought through federalism. But the need to reconcile diversity and social cohesion can also be addressed through aspirational values embedded in a constitution. In fact, constitutions may entrench fundamental principles directing policies to foster equality, eliminate obstacles or require the different tiers of government to collaborate harmoniously in the performance of their functions. In exploring solidarity between different communities and cooperative government in South Africa, ethnicity as foundational value in Ethiopia, and the federal character in Nigeria, this article offers a comparative account of the three most important federations in Africa to assess how their constitutions reconcile diversity and social cohesion through aspirational principles related to federalism.
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'Nyane, Hoolo. "Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa." Potchefstroom Electronic Law Journal 22 (October 18, 2019): 1–30. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5713.
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The Constitution of Lesotho has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho, 1993 has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism.
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Malan, MC Schoeman. "Recent Developments Regarding South African Common and Customary Law of Succession." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 10, no. 1 (July 4, 2017): 106. http://dx.doi.org/10.17159/1727-3781/2007/v10i1a2794.
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This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.
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Biggs, Lisa. "Serious Fun at Sun City: Theatre for Incarcerated Women in the “New” South Africa." Theatre Survey 57, no. 1 (December 9, 2015): 4–36. http://dx.doi.org/10.1017/s0040557415000538.
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Women have been largely invisible in crime discourse in South Africa; they have never been conceived of as either the primary authors or objects of the law. Yet according to the Republic of South Africa Department of Correctional Services (DCS), they are one of the fastest-growing segments of the prison population today. In the eight years following democratic elections in 1994, DCS reports that the number of women behind bars grew by over 31 percent. From 2008 to 2012 alone, the women's prison population rose by 10 percent while the number of men behind bars declined. These increases are not fully attributable to an escalation in women's illicit behavior. Instead, shifts in policing and sentencing policies now mandate longer sentences for crimes for which women are most likely to be convicted—both aggressive and non-violent, often poverty-related, offenses such as theft (shoplifting, robbery, burglary, carjacking, fraud, embezzlement), narcotics (trafficking, sale, distribution), and sex work.
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Banda, Sibo. "Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi." Journal of African Law 53, no. 1 (March 23, 2009): 142–70. http://dx.doi.org/10.1017/s0021855309000060.
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AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.
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Rautenbach, Christa. "Muslim personal law and the meaning of "law" in the South African and Indian constitutions." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 2, no. 2 (July 10, 2017): 50. http://dx.doi.org/10.17159/1727-3781/1999/v2i2a2895.
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The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.
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Pretorius, D. M. "“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2." Fundamina 26, no. 2 (2020): 424–519. http://dx.doi.org/10.47348/fund/v26/i2a6.
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This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The first part focused mainly on constitutional review, namely the power of the law courts to test the validity of statutes against constitutional criteria. This second part analyses the historical development of administrative law, especially the common-law evolution of judicial review of the decision-making processes of organs of state, and how that process unfolded reciprocally with political shifts in twentieth-century South Africa. There is also a synopsis of the introduction of administrative law as a discrete subject in South African law schools. Finally, this contribution briefly explores historical aspects of the role of interpretation of statutes in the context of administrative law, and briefly touches on special statutory review as distinct from common-law review.
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M Maithufi (In Memory) and CA Maimela. "Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions." Obiter 41, no. 1 (April 1, 2020): 1–9. http://dx.doi.org/10.17159/obiter.v41i1.10545.
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African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.
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Mupangavanhu, Yeukai. "Towards an Extensive Statutory Protection of Consumers in Timeshare Agreements: A Comparative Perspective." African Journal of International and Comparative Law 29, no. 1 (February 2021): 117–37. http://dx.doi.org/10.3366/ajicl.2021.0353.
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Timeshare property interest has become a major business worldwide. The protection of consumers in various timeshare-related contracts has been characterised by challenges due to outdated laws, lack of appropriate legislation as new products are introduced on the market as well as the inclusion of unfair terms. The European Union (EU) adopted the Timeshare Directive 2008/122/EC which governs a broad range of timeshare-related contracts, namely: timeshare, long-term holiday products, and resale and exchange contracts. In comparison, South Africa and Kenya do not have consolidated legislation that govern timeshare-related contracts. In South Africa, timeshare agreements fall under the Consumer Protection Act 68 of 2008, the Property Time-sharing Control Act 75 of 1993 as well as under common law. In Kenya, the Consumer Protection Act 46 of 2012, which was revised in 2016, governs specific consumer agreements including timeshare contracts. The article compares the position of consumers who enter into timeshare-related services in South Africa, Kenya and the EU. It is argued that the problems faced by consumers who enter into timeshare-related contracts in South Africa and Kenya necessitate legislative protection which should consist of a consolidated statute that specifically regulates such contracts for the attainment of a high level consumer protection.
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Kirby, Michael. "The common law and international law – a dynamic contemporary dialogue." Legal Studies 30, no. 1 (March 2010): 30–60. http://dx.doi.org/10.1111/j.1748-121x.2009.00138.x.
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International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.
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Eesa A Fredericks. "Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa." Obiter 41, no. 1 (April 1, 2020): 10–44. http://dx.doi.org/10.17159/obiter.v41i1.10546.
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This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.
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Ikhariale, M. A. "THE DOCTRINE OF LEGITIMATE EXPECTATIONS: PROSPECTS AND PROBLEMS IN CONSTITUTIONAL LITIGATION IN SOUTH AFRICA." Journal of African Law 45, no. 1 (April 2001): 1–12. http://dx.doi.org/10.1017/s0221855301001572.
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One of the outstanding features of the South African Constitution is the well-articulated concept of administrative justice. It is to be expected that a modern constitutional state with an enormous social reconstruction programme like that of post-apartheid South Africa must have a sophisticated mechanism for the maintenance of administrative justice. The immediate past experience of apartheid under which the administrative process was devoted to the victimization of a large section of the population has also meant that every constitutional means possible in the arduous task of social reconstruction must be deployed towards the declared objective of the evolution of a humane and just administrative process. It was therefore not surprising that the post-apartheid constitutions considered the availability of administrative justice for citizens as one of their foremost civil liberties. Under the common law, the concept of administrative justice is generally associated with the notion of natural justice. Recent developments, however, have tended to narrow the concept down to the idea of fairness. The most remarkable proof of this development is the emergence of the doctrine of legitimate expectations, under which the courts have been able to come to the aid of persons who would have in previous situations been unable to obtain redress in matters where the application of administrative discretion is of paramount importance.
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Rautenbach, Christa. "Some comments on the current (and future) status of Muslim personal law in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 7, no. 2 (July 10, 2017): 95. http://dx.doi.org/10.17159/1727-3781/2004/v7i2a2852.
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The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts.The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunal and, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law. Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether we should opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated.
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Roos, A. "Personal Data Protection in New Zealand: Lessons for South Africa?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 4 (July 4, 2017): 61. http://dx.doi.org/10.17159/1727-3781/2008/v11i4a2786.
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In 1995 the European Union adopted a Directive on data protection. Article 25 of this Directive compels all EU member countries to adopt data protection legislation and to prevent the transfer of personal data to non-EU member countries (“third countries”) that do not provide an adequate level of data protection. Article 25 results in the Directive having extra-territorial effect and exerting an influence in countries outside the EU. Like South Africa, New Zealand is a “third” country in terms of the EU Directive on data protection. New Zealand recognised the need for data protection and adopted a data protection Act over 15 years ago. The focus of this article is on the data protection provisions in New Zealand law with a view to establishing whether South Africa can learn any lessons from them. In general, it can be said that although New Zealand law does not expressly recognise a right to privacy, it has a data protection regime that functions well and that goes a long way to providing adequate data protection as required by the EU Directive on data protection. Nevertheless, the EU has not made a finding to that effect as yet. The New Zealand data protection act requires a couple of amendments before New Zealand might be adjudged ‘adequate’. South Africa’s protection of the right to privacy and identity is better developed and more extensive than that of New Zealand. Privacy is recognised and protected in the law of delict and by the South African Constitution. Despite South Africa’s apparently high regard for the individual’s right to privacy and identity and our well-developed common and constitutional law of privacy, South Africa does not meet the adequacy requirement of the EU Directive, because we do not have a data protection Act. This means that South African participants in the information technology arena are at a constant disadvantage. It is argued that South Africa should follow New Zealand’s example and adopt a data protection law as soon as possible.
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Barkhuizen, L. M., O. L. F. Weyl, and J. G. Van As. "An assessment of recreational bank angling in the Free State Province, South Africa, using licence sale and tournament data." Water SA 43, no. 3 (August 2, 2017): 442. http://dx.doi.org/10.4314/wsa.v43i3.09.
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Adeyemo, Josiah, Folasade Adeyemo, and Fred Otieno. "Assessment of Pollutant Loads of Runoff in Pretoria, South Africa." International Journal of Social Ecology and Sustainable Development 1, no. 3 (July 2010): 1–12. http://dx.doi.org/10.4018/jsesd.2010070101.
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Pollutants in stormwater are detrimental to the receiving water bodies. The study of pollutants in stormwater is important to know the appropriate management techniques to remove these pollutants. This paper presents an explorative study of runoff in Pretoria, South Africa. Common pollutants in stormwater are studied to determine their correlation with total suspended solids found in four different sites in Pretoria. The metals are strongly correlated with total suspended solids. It is suggested that treatment of pollutants by treating or removing solids may be extended to other heavy metals and nutrients to improve stormwater quality. In this study, some contaminants are identified to be associated with traffic volume. In this paper, the authors suggest that efforts should be made nationally and internationally to redesign vehicular products to eliminate the traffic contaminants in stormwater.
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Dyani, Ntombizozuko. "An Opportunity Missed for Male Rape Survivors in South Africa: Masiya v Director of Public Prosecutions and Another." Journal of African Law 52, no. 2 (September 18, 2008): 284–301. http://dx.doi.org/10.1017/s0021855308000132.
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AbstractThe Constitutional Court of South Africa recently handed down a judgment on the extension of the common law definition of rape to include anal penetration of women, but not of men. The court argued that women form part of the most vulnerable group in society. This article analyses the court's judgment and argues that the court should have included anal penetration of men in the light of South African lower courts' decisions, international law and the fact that there is currently a law before parliament which pertains to the anal penetration of men. The article also argues that the court should have taken into consideration that this case involved a child, who is also from the most vulnerable group in society.
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Nwafor, Anthony O. "The protection of environmental interests through corporate governance: A South African company law perspective." Corporate Board role duties and composition 11, no. 2 (2015): 8–20. http://dx.doi.org/10.22495/cbv11i2art1.
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The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.
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Nienaber, A. "The regulation of informed consent to participation in clinical research by mentally ill persons: An overview." South African Journal of Psychiatry 16, no. 4 (December 1, 2010): 6. http://dx.doi.org/10.4102/sajpsychiatry.v16i4.262.
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The article examines the legal requirements relating to the informed consent of mentally ill persons to participation in clinical research in South Africa. First, the juridical basis of informed consent in South African law is outlined; and second, the requirements for lawful consent developed in South African common law and case law are presented. Finally, the article deliberates upon the requirements for the participation of mentally ill persons in research as laid down by the Mental Health Care Act and its regulations, the National Health Act and its (draft) regulations, and the South African Constitution.
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Flanagan, Brian, and Sinéad Ahern. "JUDICIAL DECISION-MAKING AND TRANSNATIONAL LAW: A SURVEY OF COMMON LAW SUPREME COURT JUDGES." International and Comparative Law Quarterly 60, no. 1 (January 2011): 1–28. http://dx.doi.org/10.1017/s0020589310000655.
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AbstractThis is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that dawn to be alive. But to be young was very heaven.– Justice Stephen Breyer's assessment of ‘the global legal enterprise now upon us’ before the American Society of International Law (2003)
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De Wet, Erika. "The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 1 (April 21, 2017): 565. http://dx.doi.org/10.17159/1727-3781/2014/v17i1a2258.
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The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.
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Blaum, Niels, Richard M. Engeman, Bernd Wasiolka, and Eva Rossmanith. "Indexing small mammalian carnivores in the southern Kalahari, South Africa." Wildlife Research 35, no. 1 (2008): 72. http://dx.doi.org/10.1071/wr07023.
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Monitoring animal populations in changing environments is crucial to wildlife conservation and management, but restrictions in resources are a recurring problem for wildlife managers and researchers throughout Africa. Land-use-induced shrub encroachment in Kalahari savannah rangelands has led to fragmentation of the landscape. Mammalian carnivores are particularly vulnerable to local extinction in fragmented landscapes, but their low numbers and their often nocturnal and secretive habits make them difficult to monitor. In this study, we tested the applicability of a passive tracking method and compared two measurement methods and index calculations for monitoring small carnivores across a grazing gradient in the southern Kalahari. During the four years of monitoring in a five-year period, we used the knowledge of indigenous Khoisan Bushmen for the identification of carnivore tracks on 640 sand transects (5 m × 250 m). Our results showed that this simple and inexpensive observation method enabled detailed monitoring of 10 small carnivore species across the grazing gradient. A binary index calculated an index based on presence/absence of a species’ tracks on each transect, whereas the track intrusion index used the number of track intrusions to each transect for each species in its calculations. For less common species, the two indices were similar in trend and magnitude, because the number of intrusions to each transect was typically 1 or 0. Usually, the two indices showed relatively strong correlations. However, species with patchy distributions of higher numbers presented difficulties for the binary index to monitor trends, but not for the track intrusion index.
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Schutte, PJW. "Oordrag van eiendomsreg en die vulgêre reg in die Wes-Romeinse ryk." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 3, no. 2 (July 10, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2000/v3i2a2886.
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It is generally accepted that an abstract system is applied in South Africa with regard to the transfer of ownership. It is a characteristic of the abstract system that the different legal acts which form part of the process, namely the obligatory agreement, delivery of the thing concerned or registration, and the real agreement are separated from each other and that each has its own requirements. However, there is no certainty about the question as to whether or not this distinction stems from Roman law. The purpose of this article is to ascertain whether the distinction between the different legal acts existed in the vulgar law.It appears that the legal position in the vulgar law differs from South African law in that no distinction between the obligatory agreement and delivery of the thing existed. The conclusion of the sale, payment of the purchase price and the delivery of the merx took place simultaneously. It was considered to be one single act which also transferred ownership from one person to another. It furthermore appears that the intention of the parties to transfer ownership played a very important role. Yet, it was only the intention that existed at the time when the obligatory agreement was entered into, that mattered. Ownership did not pass by virtue of a separate meeting of the minds which could be abstracted from the obligatory agreement.Although certain formal requirements, the purpose of which were to enable the state to collect taxes, had been introduced in the vulgar law, writing and registration had not been regarded as formal requirements for the transfer of ownership in immovable property. Yet, the practice had been to draw written documents relating to the contract of sale, and to register them in municipal registers. This form of registration, however, is not tantamount to registration in the Deeds Registry.The conclusion is that an independent real agreement, which could be abstracted from the obligatory agreement was unknown to the vulgar law. There was no clear-cut distinction between the different legal acts such as that existing in South African law at present.
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Briers, N., and J. J. Dempers. "Ethical Issues Surrounding the Use of Modern Human Remains for Research in South Africa." Journal of Empirical Research on Human Research Ethics 12, no. 1 (February 2017): 45–54. http://dx.doi.org/10.1177/1556264616688973.
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Chapter 8 of the South African National Health Act 61 of 2003 (NHA) that deals with the donation of human tissue was promulgated in 2012. The new Act is perceived to impose restrictions on low-risk research involving human remains. This study aimed to identify the issues raised by a research ethics committee (REC) when reviewing protocols where human remains are used as data source. REC minutes from 2009 to 2014 were reviewed, and issues raised by the committee were categorized. In total, 127 protocols submitted to the committee over 6 years involved human remains. Queries relating to science (22.2%) and administration (18.9%) were the most common, whereas queries relating to legal issues constituted only 10.2%. Ethical issues centered on informed consent regarding sensitive topics such as HIV, DNA, and deceased children. The change in legislation did not change the number or type of legal issues identified by the REC.
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ABRAHAMS, Charles. "The South African Experience: Litigating Remedies." Business and Human Rights Journal 6, no. 2 (June 2021): 270–78. http://dx.doi.org/10.1017/bhj.2021.25.
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AbstractMany transnational corporations (TNCs) that conducted business in South Africa during apartheid had deemed it profitable and desirable, despite the country’s systemic human rights violations against its majority black population. In the aftermath of the 1960 Sharpeville Massacre and 1976 student uprising, various United Nations and other international resolutions condemned TNCs for their incestuous relationship with apartheid South Africa and called for international sanctions against the regime. The demise of apartheid in 1994 brought about a new democratic, constitutional dispensation based on respect for human rights. However, attempts at holding TNCs liable for aiding and abetting the apartheid regime were fraught with obstacles and proved unsuccessful. Yet, the pursuit of strategic, class action litigation in areas as diverse as collusive conduct in bread manufacturing to occupational lung disease in South Africa’s goldmining industry have proven to be more successful in developing legal remedies against corporate harm. Areas impacted are extended legal standing under the common law, development of new causes of action and generous application of contingence fees arrangement.
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Sanders, A. J. G. M. "Law Reporting in Swaziland." Journal of African Law 29, no. 1 (1985): 94–101. http://dx.doi.org/10.1017/s0021855300005659.
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The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.
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Phasha, Tlakale Nareadi, and Doris Nyokangi. "School-Based Sexual Violence Among Female Learners With Mild Intellectual Disability in South Africa." Violence Against Women 18, no. 3 (March 2012): 309–21. http://dx.doi.org/10.1177/1077801212444578.
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Following qualitative research methodology, this article presents school-based sexual violence experiences of female learners with mild intellectual disability. A total of 16 learners aged 16 to 24 years participated in the study. The findings revealed that learners with intellectual disability are not immune to school-based sexual violence. Modes of behavior that occurred frequently included touching, threats, and intimidation. School practices that reinforced school-based sexual violence are identified. The findings contradict common misconceptions that people with intellectual disability do not understand what is happening to them. The study recommends that school policies for sexual violence be intensified and learners receive developmentally appropriate sex education.
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Gwatidzo, Shingai D., Petronella K. Murambinda, and Zivanai Makoni. "Medicines Counterfeiting in Africa: A View from Zimbabwe." Medicine Access @ Point of Care 1 (January 2017): maapoc.0000017. http://dx.doi.org/10.5301/maapoc.0000017.
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With the sprouting of unregulated outlets on the streets of Zimbabwe, common questions that are raised include: (i) what is the Medicines Control Authority of Zimbabwe (MCAZ) doing about these street vendors? and (ii) is the law against unregulated markets and proliferation of substandard and falsified (SF) medicines being actively enforced? There is no doubt that this is a new challenge for MCAZ because of the risks involved with SF medicines. Notwithstanding the rather strong regulatory framework for the regulated market that the MCAZ has major control over, and its demonstrable regulatory prowess over the last 20 years as a National Medicines Regulatory Authority (NMRA), MCAZ is increasingly challenged to take a leading role in addressing this rising phenomenon. MCAZ has attempted to address the problem through collaboration with the Zimbabwe Republic Police (ZRP), public education and inspections by port officials at ports of entry. However, the problem still persists. A general lack of concrete qualitative and quantitative data on the commonly encountered SF medicinal products on the Zimbabwe market is another major issue. This is evidently a multi-layered problem and as the Shona adage goes “chara chimwe hachitswanye inda” (loosely translated “one thumb cannot crush all lice”), there is need for engaging local and regional partners in a bid to fulfil the MCAZ's mandate of protecting public health by ensuring medicines and medical devices intended for sale and distribution in Zimbabwe, are safe, effective and of good quality.
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Rautenbach, Christa, and Willemien du Plessis. "African Customary Marriages in South Africa and the Intricacies of a Mixed Legal System: Judicial (In)novatio or Confusio?" Symposium: Mixed Jurisdictions 57, no. 4 (November 8, 2012): 749–80. http://dx.doi.org/10.7202/1013030ar.
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South Africa has a mixed legal system comprised of transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law) and indigenous laws, referred to as customary law. This mix is also evident in South Africa’s marriage laws, which can roughly be divided into two categories: civil marriages or unions, and African customary marriages. Since 1994, the developments in these two categories of marriage have been revolutionary. The case law reads like a jurisprudential chronicle of factual situations never contemplated by the legislator, and the judiciary must resort to innovation to solve the intricacies of a constitutionalized mixed legal system. To deal with the challenges posed by the interaction of two seemingly equal legal systems in one legal sphere, the courts have followed a variety of approaches including legal positivism, the application of common law principles, and, more recently, the notion of transformative constitutionalism. The primary aim of this essay is to discuss the sometimes innovative and at other times confusing approaches followed by the judiciary in dealing with the complexities created by a mixed legal system, especially with regard to marriages between Africans.
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Nelson, Michael Byron. "Africa’s Regional Powers and Climate Change Negotiations." Global Environmental Politics 16, no. 2 (May 2016): 110–29. http://dx.doi.org/10.1162/glep_a_00348.
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Two pillars underpin Africa’s approach to climate change negotiations: One is the “African Common Position,” and the other is the development of a negotiating coalition for presenting that position. This report explores the roles that Africa’s regional powers—Egypt, Ethiopia, Nigeria, and South Africa—play in supporting this African approach. These regional powers do not share the same interests as the rest of the continent. Not only do they differ based on energy production (Nigeria) and consumption (South Africa), but also in terms of their general vulnerabilities and readiness to face climate change. Even where they share interests, they often view these negotiation processes as serving goals other than solving the problems of climate change. Despite such issues, Africa still needs its regional powers to play a role in ongoing global negotiations, and the world will likely continue to focus on at least some of them as continental representatives.
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Klug, Heinz. "Between Principles & Power: Water Law Principles & the Governance of Water in Post-Apartheid South Africa." Daedalus 150, no. 4 (2021): 220–39. http://dx.doi.org/10.1162/daed_a_01881.
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Abstract Debates over the management and allocation of water in the postcolonial era, and in post-apartheid South Africa in particular, reveal that struggles over water resources in Southern Africa occur within three broad frames: the institutional, the hydrological, and the ideological. Each of these realms reflects tensions in the relationship between power and principle that continue to mark the governance of water. Each perspective offers a way to understand the use and the limits of law in the management of a country's water resources. The existence of explicit principles, whether as policy guidelines, constitutional rights, or in the language of regional and international agreements, provides two important resources for those who struggle for access to water. First, a vision of a more just allocation of this fundamental resource and, second, an articulation of common benchmarks to which states and governments might be held to account.
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Pillay, Basil J., and Jerome A. Singh. "‘Mental capacity’, ‘sufficient maturity’, and ‘capable of understanding’ in relation to children: how should health professionals interpret these terms?" South African Journal of Psychology 48, no. 4 (December 21, 2017): 538–52. http://dx.doi.org/10.1177/0081246317747148.
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South Africa’s Children’s Act 38 of 2005 requires health professionals to determine whether a child possesses ‘sufficient maturity’ and ‘mental capacity’ to make decisions about themselves in relation to surgery, treatment, and HIV testing. Similarly, the National Health Act 61 of 2003 requires a child to be ‘capable of understanding’ to provide informed consent in research. However, neither the Children’s Act nor the National Health Act defines these terms. Moreover, there is no common definition of ‘sufficient maturity’ among healthcare professionals in South Africa. Appreciating how foreign law interprets ‘mental capacity’ and how different healthcare professionals evaluate ‘maturity’ could prove illuminative in respect to how these terms could be interpreted by health professionals in South Africa, and elsewhere.
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Ntlama, Nomthandazo. "The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (May 22, 2017): 23. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2455.
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The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.
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Kilian, Cornelius G., and Elizabeth Snyman-Van Deventer. "Claiming Damages where Dividends remain Unpaid: A Contribution towards a More Balanced Approach in South Africa." Potchefstroom Electronic Law Journal 20 (November 2, 2017): 1–26. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1322.
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In the matter between Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd 2013 NSWSC 235 (25 Mar 2013) the Supreme Court of New South Wales had to decide on the legal difficulty arising from unpaid dividends. The Court was required to decide whether a shareholder has a right to a predetermined annual dividend. The principles applied by the Supreme Court entailed estoppel (common law), minority oppression (company law) and contractual law principles. Although the principles of estoppel were relevant, these fall outside the ambit of this article concerning unpaid dividends. The Supreme Court cited approximately 40 cases and considered 5000 pages of documentary evidence pertaining to the contractual right to a predetermined dividend. Although the latter seems applicable and relevant to the South African corporate law environment, South African case law does not support it. Besides a contractual right, this article also investigates the Oxford Legal Group case in establishing at least an implied right (based on the doctrine of proper purpose) to claim an undeclared dividend or unauthorised dividend that is contrary to the board of directors discretion not to authorise any dividends. Both these cases argue when and why a court should interfere in company resolutions in striking a better balance between a right to a dividend and a company's discretionary power not to recommend or declare a dividend.
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Kilian, Cornelius G., and Elizabeth Snyman-Van Deventer. "Claiming Damages where Dividends remain Unpaid: A Contribution towards a More Balanced Approach in South Africa." Potchefstroom Electronic Law Journal / Potchefstroomse Elektroniese Regsblad 20 (November 2, 2017): 1–26. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a4175.
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In the matter between Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd 2013 NSWSC 235 (25 Mar 2013) the Supreme Court of New South Wales had to decide on the legal difficulty arising from unpaid dividends. The Court was required to decide whether a shareholder has a right to a predetermined annual dividend. The principles applied by the Supreme Court entailed estoppel (common law), minority oppression (company law) and contractual law principles. Although the principles of estoppel were relevant, these fall outside the ambit of this article concerning unpaid dividends. The Supreme Court cited approximately 40 cases and considered 5000 pages of documentary evidence pertaining to the contractual right to a predetermined dividend. Although the latter seems applicable and relevant to the South African corporate law environment, South African case law does not support it. Besides a contractual right, this article also investigates the Oxford Legal Group case in establishing at least an implied right (based on the doctrine of proper purpose) to claim an undeclared dividend or unauthorised dividend that is contrary to the board of directors discretion not to authorise any dividends. Both these cases argue when and why a court should interfere in company resolutions in striking a better balance between a right to a dividend and a company's discretionary power not to recommend or declare a dividend.
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Badenhorst, P. J. "The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part One: Statutory and Theoretical Distinction between Real Rights and Personal Rights." African Journal of International and Comparative Law 29, no. 3 (August 2021): 450–62. http://dx.doi.org/10.3366/ajicl.2021.0376.
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Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.