ISSN: 1996-2118
Affiliations: University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 128 – 136
https://doi.org/10.47348/SACJ/v34/i1a7
None.
ISSN: 1996-2118
Affiliations: University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 137 – 152
https://doi.org/10.47348/SACJ/v34/i1a8
None.
ISSN: 1996-2118
Affiliations: University of Kwazulu-Natal
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 153 – 168
https://doi.org/10.47348/SACJ/v34/i1a9
None.
ISSN: 2522-3062
Affiliations: Legal Researcher, Correctional Service Home, South Africa; Senior Lecturer, School of Law, University of Venda; Professor of Law, School of Law, University of Venda
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 3 – 34
There is a massive presence of asylum seekers in South Africa. Amongst this population are children who need social assistance from the state distributed as ‘grants’, due to their dependence, vulnerability and developmental requirements. South Africa is a state party to international instruments on human rights and has a regulatory framework including the Constitution which allows for the application of these instruments and guarantees the right to social security for everyone. This article focuses on whether the existing corpus of international instruments on human rights and relevant domestic regulatory frameworks may allow children of asylum seekers the access to social assistance in South Africa. While demonstrating that the access to social assistance for children of asylum seekers is implied under international human rights instruments, the article establishes that this has not found expression in the application of existing legislation on social assistance in South Africa. By deploying an appropriate interpretive approach, courts may respond to this normative gap and thereby assist in guaranteeing the access of these children to social assistance in South Africa.
ISSN: 2522-3062
Affiliations: Assistant Lecturer, Department of Mercantile Law, University of Johannesburg; Professor, Department of Mercantile Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 35 – 71
It is questionable whether illegality in the underlying contract of a demand guarantee can or should constitute a valid exception to this instrument’s independence (autonomy) principle. From earlier English case law and scholarly discussions it appears that the acceptance of such an exception is contentious and, even if it is recognised, its extent remains uncertain. The English courts have previously indicated that they are open to accepting illegality in the underlying contract as an exception to the principle of independence of demand guarantees, but have not developed the exact parameters of such an exception. In the past, there were no South African court cases where illegality in the underlying contract was accepted, or even considered, as a possible exception to the independence principle of a demand guarantee. In a recent South African case, Mattress House (Proprietary) Ltd v Investec Property Fund Ltd, we find the first evidence of a South African High Court’s willingness to accept the possibility of illegality in the underlying contract as constituting a valid exception. In this article we discuss this South African case, which provides general guidance on the possibility of accepting such an exception under the South African law. South Africa is always persuasively influenced by English law in relation to demand guarantees. Therefore, we also discuss the English law.