“Fit and proper” judges and free speech: A critical reflection

by | Mar 31, 2024 | SLR, SLR V34 I3

“Fit and proper” judges and free speech: A critical reflection

Author: Fareed Moosa

ISSN: 1996-2193
Affiliations: BProc (UWC) LLB (UWC) LLM (UCT) LLD (UWC), Associate Professor, Department of Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 429 – 450
https://doi.org/10.47348/SLR/2023/i3a4

Abstract

Against the backdrop of the silence by apartheid-era judges who refused to speak out against the inhumanity of apartheid, resulting in egregious human rights violations, this article explores what it means to be a “fit and proper” judge as envisaged by section 174(1) of the Constitution of the Republic of South Africa, 1996 read with the Judicial Service Commission Act 9 of 1994 and the Code of Judicial Conduct GN R 865 in GG 35802 of 18-10-2012 (“the Code”). The argument is that, in this context, the meaning of “fit and proper” has far greater depth and breadth than the same normative standard contemplated by the Legal Practice Act 28 of 2014 for lawyers as officers of the court. A “fit and proper” judge is a person with more than just absolute integrity, impeccable honesty, a high degree of professionalism, and unflinching incorruptibility. A judge is also a person who, at all times, scrupulously obeys the Constitution and its dictates, strictly respects the law and abides by the rule of law, always advances human rights and constitutional values, and faithfully discharges all duties embraced by the oath of judicial office and does so with courage.
This article argues that South Africa can only take its rightful place in the family of nations if its judges, through their extra-judicial words and deeds, help shape South African society, and others where needed. The Constitution and the oath of judicial office oblige judges to, inter alia, denounce apartheid in any of its current-day incarnations, and advocate for legal orders moulded by democratic values, human rights, freedom, equality, rule of law, and justice for all. A culture of judicial silence in the face of injustice and human rights violations, whether perpetrated on foreign or domestic soil, is an abdication of judicial responsibility and antithetical to the ethos underpinning the transformative notion of a “fit and proper” judge under the Constitution. This article reminds judges that while duties arising from the Constitution and their oath of office rank supreme over any in the Code, they are to be delicately balanced. Extra-curial speech must respect the separation of powers and not undermine the judiciary’s standing, integrity and independence.

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

by | Mar 31, 2024 | SLR, SLR V34 I3

The role of the recognition of the Customary Marriages Amendment Act 1 of 2021 and wills in determining the proprietary consequences of polygynous customary marriages [Discussion of Mshengu v Estate Late Mshengu (9223/2016P) 2021 ZAKZPHC 49 (6 August 2021)]

Author: Tshepo Aubrey Manthwa

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, School of Law, University of South Africa
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 451 – 459
https://doi.org/10.47348/SLR/2023/i3a5

Abstract

The Recognition of Customary Marriages Amendment Act 1 of 2021 amends section 7(1) of the Recognition of Customary Marriages 120 of 1998 as a sequel to Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) and Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) in which this section was declared unconstitutional on the basis that it unfairly discriminated, on the basis of gender and race, against women married in terms of customary law before the commencement of the Act. According to the Constitutional Court, these women did not have the right to possess property in terms of customary law, which left them especially vulnerable in the absence of statutory protection if their marriages were dissolved for example.
The achievement of gender equality is an important transformative and social justice goal in South Africa. Over the years, the courts have reconstructed customary law to promote gender equality. Customary law traditionally did not discriminate against women and they were allowed to manage property. However, this changed after contact with colonialism where, through collaboration with African men, women were treated as minors. This was a distortion of the legal system. The problem is that all the focus, including that of the courts and the legislature, is on the distorted version of customary law, and the true version that did not discriminate against women is being ignored. Consequently, in reconstructing and creating gender equality, a new form of customary law is being created, namely constitutional customary law. The true form of customary law does not recognise private ownership of property, A person can only manage property, not own it, but through constitutional customary law, the court and legislature have imposed common law concepts such as joint and equal ownership of property. This has unfortunate consequences, such as the fact that a customary heir can alienate family property after divorce while disregarding any responsibility to the family.

Demystifying the value-added tax effects of foreign branches in South Africa: The Wenco case

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

Demystifying the value-added tax effects of foreign branches in South Africa: The Wenco case

Author: Faeeza Soni

ISSN: 1996-2185
Affiliations: CA (SA), Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 123 – 137
https://doi.org/10.47348/SAMLJ/v35/i2a1

Abstract

The application of South African value-added tax (VAT) principles to transactions involving foreign branches is challenging. A recent judgment made in Wenco International Mining Systems Ltd & another v CSARS (59922/2019) [2021] ZAGPPHC 70 brought the uncertain applications of the VAT Act to the forefront. An awareness of the uncertainties could guide policymakers to improve the legislation and assist tax professionals who advise their clients. This research adopts a qualitative approach and traditional legal doctrinal methodology. It proposes amendments to the legislation. I question the application of s 8(9) of the VAT Act because proviso (ii) of the definition of ‘enterprise’ separates the activities of foreign branch or foreign main business from those of the vendor. It is unclear if a foreign branch or foreign main business is treated as a separate ‘person’ in the VAT Act, with all the accompanying powers of another ‘person’. The proviso is also unclear about whether it applies only if the foreign branch or foreign main business makes supplies ‘for consideration’. It is unclear whether s 11(1)(i) and 11(2)(o) should apply, as opposed to s 11(1)(a) and 11(2)(l).

A comparative assessment of the treatment of unincorporated business entities in financial distress in South Africa

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

A comparative assessment of the treatment of unincorporated business entities in financial distress in South Africa

Authors: Kudzai Mpofu & Hermanus Johannes Moolman

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, Walter Sisulu University; Senior Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 138 – 161
https://doi.org/10.47348/SAMLJ/v35/i2a2

Abstract

The main objective of this paper is to examine how business rescue schemes in South Africa facilitate the rescue of sole proprietorships and partnerships (unincorporated business entities) in financial distress. It is premised on the view that when a business is in financial distress, the lawmaker should provide some form of business rescue scheme accessible to all debtors regardless of their legal status, size, or commercial activities. The business rescue process has arguably received the most scholarly attention in recent times, yet, little or no attention is paid to the fate of financially distressed unincorporated entities in South Africa. The article sheds light on the role and significance of small and medium enterprises in promoting economic growth and the need to promulgate a debtor-friendly rescue regime. Through a comparative assessment, different business rescue schemes available to unincorporated business entities in South Africa, the United States of America and the United Kingdom are explored. It is observed that sole proprietorships and partnerships, which account for most unincorporated business entities in South Africa, are not eligible for business rescue or debt relief under the existing legislation. The rationale behind excluding unincorporated business entities from business rescue legislation seems to be that they lack legal personality. However, in other jurisdictions, the legislature has promulgated special business rescue procedures customised to match the unique personality of unincorporated business entities. Therefore, the South African legislature should consider promulgating a business rescue model for unincorporated business entities separate from the current Chapter 6 business rescue. Chapter 13 of the USA Bankruptcy Code provides an ideal rescue scheme for sole proprietors, while the UK insolvent partnership administration provides lessons on how to modify a business rescue scheme applicable to companies to accommodate partnerships in financial distress. The article contributes to the development of business rescue legislation that is targeted at relieving small businesses in financial distress.

Hiding behind the veil: On whom does liability for discriminatory practices by recruitment agencies fall

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

Hiding behind the veil: On whom does liability for discriminatory practices by recruitment agencies fall

Authors: Davy Rammila & Ernest Manamela

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of South Africa; Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 162 – 189
https://doi.org/10.47348/SAMLJ/v35/i2a3

Abstract

The Employment Equity Act 55 of 1998 (EEA) provides that applicants for employment are employees for purposes of its unfair discrimination provisions. The EEA is, however, silent in respect of applicants who seek employment through recruitment agencies. In this article, we argue that this silence has the potential to handicap these applicants and deprive them of the statutory procedure they would have enjoyed had they otherwise applied directly to employers. We further contend that the relationship between recruitment agencies and applicants for employment is not capable of being construed to fall within the provisions of s 4 of the EEA. We also posit that it would be unreasonable to expect these applicants to follow an onerous process under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; this, despite there being a clear employment nexus informing the foundation and execution of the juristic act between the respective parties. Instead, we propose that recruitment agencies are agents in the ordinary sense, that their engagements with applicants enjoy prior authorisation from the potential employer, and that any consequences of such engagements are attributable to the potential employer.