Abstract

The Matrimonial Property Act 88 of 1984 ensures equal spousal powers in relation to the administration of the joint estate. Section 15 of the Matrimonial Property Act entrenches the right to joint administration by requiring written consent of the other spouse in transactions that would have a substantial impact on their share of the joint estate. Most notably, section 15(2)(g) requires the consent of a spouse “to enter into a contract as defined in the Alienation of Land Act” which is generally understood as requiring the consent of both spouses when purchasing immovable property. The Alienation of Land Act 81 of 1988 defines “contract” as a “deed of alienation under which land is sold against payment by the purchaser to, or to any person on behalf of, the seller of an amount of money in more than two installments over a period exceeding one year”. This wording effectively limits the requirement for spousal consent to installment sales which reveals a fatal flaw or loophole in the protection afforded by the system of joint administration of the joint estate for spouses married in community of property. Most modern property transactions are cash sales secured by mortgage and not installment sale transactions. With reference to reported and unreported cases, this article investigates the loophole and proposes a way in which the devastating effects of the flaw might be mitigated in future cases.

Abstract

In South African Revenue Services v Commission for Conciliation, Mediation & Arbitration, Kruger, the employee, called his superior a “kaffir” on more than one occasion. The employer unilaterally dismissed the employee after the chairperson of the disciplinary hearing had imposed a lesser sanction. In doing so, the employer disregarded the collective agreement which did not make provision for the sanction of the disciplinary chair to be substituted. The employee claimed that his dismissal was invalid and therefore unfair. The Commission for Conciliation Mediation and Arbitration (“CCMA”), Labour Court and Labour Appeal Court (“LAC”) agreed. However, in the Constitutional Court (“CC”) the employer no longer argued that it was entitled to substitute the sanction in the light of the breach in the trust relationship, but only alleged that reinstatement was a remedy that no reasonable decision-maker would order. The CC agreed and held that the dismissal was substantively fair but procedurally unfair. The CC did not answer questions of lawfulness, fairness and invalidity, but in Steenkamp v Edcon the CC held that employees claiming remedies for unfair dismissal in terms of the Labour Relations Act 66 of 1995 (“LRA”) should not rely on invalidity. However, employees still have the right to common-law remedies based on their employment contract. Considering the importance of collective agreements, negotiated disciplinary codes, certainty and consistency, and to avoid employers exercising unfettered power over employees, state organs should apply for a review of an unsatisfactory sanction by the disciplinary chairperson in terms of section 158(1)(h) of the LRA. Private employers could negotiate a disciplinary code which allows both the employer and employee to appeal against the decision of the disciplinary chair which should make provision that a more severe sanction can be imposed on appeal.

Abstract

Millions of refugees worldwide are living in protracted situations with no end in sight. This is the situation even though refugeehood was never envisaged to be a long-lasting or permanent status. On the contrary, it was always meant to be of a temporary nature. In reality however, this status may be indefinite, and the perpetual refugee status of most of the world’s refugees today provides clear evidence thereof.

This article seeks to rethink the legal regime for refugees in protracted situations. In part one it reviews the supposed temporary nature of refugeehood and considers whether the drafters of international and refugee law anticipated protracted refugee situations. Part two provides a historical and global overview of protracted situations, explores key issues that lead to chronic exile and examines why current approaches have been insufficient. Part three then offers possible solutions by calling for a focus on responsibility-sharing, as outlined in the Global Compact on Refugees.

These proposed solutions seek to address the issues caused by a lack of political will, as demonstrated through case studies. Temporary refugee status deprives refugees of certain civil and political rights necessary for meaningful integration into their host state.

Protracted refugee situations further put people at risk of statelessness. In order to avoid continuous human rights violations, it is vital to explore durable solutions. This article postulates that the Global Compact on Refugees provides a viable solution to protracted refugee situations on the African continent. Responsibility-sharing between states and other global actors can support under-resourced host states and tackle the lack of political will that seems to prevent successful refugee integration.