A statutory duty to provide financial information at an early stage in family-law matters

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Article

A statutory duty to provide financial information at an early stage in family-law matters

Authors: Madelene de Jong & Elsje Bonthuys

ISSN: 1996-2177
Affiliations: Research Associate, University of Limpopo; Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 4, p. 748-770
https://doi.org/10.47348/SALJ/v141/i4a6

Abstract

Many people lack current and accurate information about their spouse’s financial positions, or even of their marital estates, while they are married. This creates opportunities for spouses with exclusive access to financial information to secrete assets and hide information before and during divorce, resulting in increased animosity between divorcing spouses and even unfair orders for the division of marital assets or maintenance. This article investigates four recent initiatives to create duties to provide accurate financial information in divorce and maintenance litigation between spouses and former spouses. It also discusses similar disclosure mechanisms recently adopted in other jurisdictions. The article argues that there is a clear public policy basis for creating statutory duties of financial disclosure in litigation between spouses or former spouses.

The dignity and justice of common purpose in criminal law

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Article

The dignity and justice of common purpose in criminal law

Authors: Khomotso Moshikaro & Catherine Willis-Smith

ISSN: 1996-2177
Affiliations: Senior Lecturer in Private Law, University of Cape Town; Fellow in Criminal Law & Evidence, Edinburgh; Visiting Professor in the Common Law, Bochum; Lecturer in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 4, p. 771-803
https://doi.org/10.47348/SALJ/v141/i4a7

Abstract

Although the doctrine of common purpose is accepted and repeatedly applied by South African courts, it has acquired a certain infamy in South Africa’s academy. Some of that infamy is due to the doctrine being abused in the apartheid era. Most of the controversy, however, is because the Constitutional Court has defended the doctrine on consequentialist grounds of crime control. This has led some scholars to assume erroneously that there cannot be a non-consequentialist normative justification for the common purpose doctrine. This article aims to correct what has become an uncritical academic orthodoxy and to provide a non-consequentialist justification for the doctrine. We argue that common purpose is a necessary doctrine if the criminal law is to take the individual agency and dignity of an offender seriously. Much of the criticism of common purpose is anchored in a thin conception of collective agency, which fails to appreciate what the criminal theorist John Gardner terms an agent’s individual teamwork reason. This means that all sorts of ill-conceived objections are thrown at common purpose. Our Constitution rightly vindicates the dignity and justice of common purpose in criminal law.

Non-variation clauses

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Article

Non-variation clauses

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: Distinguished Professor, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 4, p. 804-838
https://doi.org/10.47348/SALJ/v141/i4a8

Abstract

The traditional approach in South African law is to give effect to non-variation clauses, subject to limited exceptions. While recent developments in local and foreign law suggest that there is no clear justification for deviating from this approach, they also indicate that the exceptions may benefit from further refinement. First, it is too readily assumed that estoppel has no role, or an exceedingly limited role, to play in protecting the reliance of a party on the binding nature of an oral modification. It is argued that there is room for a more nuanced approach towards applying the requirements of estoppel, thereby making it a more effective tool to counteract egregious cases of contradictory behaviour. Secondly, greater clarity is required on the application of the rule that a term or its enforcement may not be against public policy. It is argued, taking the lead from Beadica 231 CC v Trustees, Oregon Trust, that certain factors may guide courts when applying the public policy rule to non-variation clauses. Ultimately, the bar that has to be crossed for not enforcing these clauses will remain high, but hopefully it can be lowered sufficiently to ensure more just outcomes.

Financial Services Tribunal decisions: Schoeman v Sanlam Developing Markets (Individual Life) and Another Case number FSP51/2023; [2024] ZAFST 47 (24 July 2024)

by | Dec 7, 2024 | JILB, JILB V27 I3

Financial Services Tribunal decisions: Schoeman v Sanlam Developing Markets (Individual Life) and Another Case number FSP51/2023; [2024] ZAFST 47 (24 July 2024)

Author Daleen Millard

ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 3, 2024, p. 36 – 37

Abstract

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