Termination of Muslim marriages in the South African legal context: Understanding the challenges

by | Jun 18, 2022 | SLR, SLR V33 I2

Termination of Muslim marriages in the South African legal context: Understanding the challenges

Author: M Osman-Hyder

ISSN: 1996-2193
Affiliations: BA LLB LLM Honorary Research Fellow, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 91 – 109
https://doi.org/10.47348/SLR/2022/i2a5

Abstract

Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

by | Jun 18, 2022 | SLR, SLR V33 I2

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

Author: Alina Starosta

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 110 – 124
https://doi.org/10.47348/SLR/2022/i2a6

Abstract

Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

by | Jun 18, 2022 | SLR, SLR V33 I2

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

Authors: Ademola Oluborode Jegede and Myrone Christopher Stoffels

ISSN: 1996-2193
Affiliations: LLB LLM LLD Professor of Law, University of Venda; LLB, LLM Lecturer, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 125 – 147
https://doi.org/10.47348/SLR/2022/i2a7

Abstract

The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

Author: Germarié Viljoen

ISSN: 1996-2193
Affiliations: LLB LLM LLD Associate Professor, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 148 – 160
https://doi.org/10.47348/SLR/2022/i2a8

Abstract

A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

by | Jun 17, 2022 | SLR, SLR V33 I2

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

Author: Amanda ZT Mkhonza

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 161 – 175
https://doi.org/10.47348/SLR/2022/i2a9

Abstract

There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

Author: Angelo Dube

ISSN: 1996-2193
Affiliations: BA LLB LLM MBL LLD Professor, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 176 – 186
https://doi.org/10.47348/SLR/2022/i2a10

Abstract

On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.

Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

Author: Theophilus Edwin Coleman

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 319 – 363

Abstract

The idea that contracting parties should be afforded the freedom to determine the content of their contract and regulate their private legal arrangements not only advances efficient international trade and commerce, but also, to a very large extent, affords the parties the opportunity to mitigate their risks in their transnational commercial relations. Parties’ risks are mitigated when the basis upon which they can conclude and enforce their contract is not concealed by uncertainty. Within the global legal order on transnational commercial and contract law, parties enter into contracts with the expectation that the contracts will be enforced by the courts of law. This article seeks to critically appraise the global stance on contractual freedom and party autonomy. It ascertains the extent to which the global approach could serve as legislative and judicial guidance for Commonwealth African countries. The article suggests that Commonwealth African countries should accede to or ratify key instruments on international commercial and contract law. It further highlights the economic significance of such accession for businesspeople in Commonwealth Africa.

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

Author: Fareed Moosa

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 364 – 383

Abstract

Section 1(a) of the Constitution of the Republic of South Africa, 1996 stipulates that human dignity, the achievement of equality and the advancement of human rights and freedoms are foundational values of South Africa’s sovereign, democratic state. Aligned herewith is s 39(1) of the Constitution, which directs that every interpretation of the Bill of Rights must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Therefore, the Constitution’s human rights ethos, culture and spirit is a dominant theme serving as a guide when the term ‘property’ is interpreted in the context of the privacy clause (s 14(b)) and the property clause (s 25). This article argues that by applying a purposive cum contextual cum grammatical cum teleological interpretive methodology, the concept ‘property’ in ss 14(b) and 25(1) of the Constitution goes beyond the conventional ambit of common-law property. It is argued that, for constitutional purposes during tax administration, property also encompasses intangible property in the form of Bitcoin and possibly other cryptocurrencies owned by taxpayers, which represent legal interests worthy of constitutional protection during tax administration by the South African Revenue Service.

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

Author: Reinhard Rudd

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 384 – 418

Abstract

The domestic laws of many countries contain statutory general anti-avoidance rules, or ‘GAAR’. As tax avoidance schemes have proliferated, especially in a cross-border context, the relative importance of a country’s GAAR has increased. A question that arises is whether a country’s GAAR can be invoked to deny the benefits granted by a tax treaty. The question is complicated by the fact that, as international agreements, tax treaties are subject to public international law, while at the same time forming part of the domestic laws of the states party to the treaty. While the Organisation for Economic Co-operation and Development has attempted to provide clarity in this regard, the answer remains dependent on the manner in which tax treaties interact with the domestic laws of the specific jurisdictions in question. In terms of South African law, the provisions of a tax treaty rank equally with those of domestic law. As a result, any conflict must be resolved by the application of the principles of statutory interpretation and superseding of legislation. Despite this fact, the South African courts tend to favour an approach whereby the provisions of domestic law and those of a treaty are reconciled, rather than having one prevail over the other. The author argues that the GAAR may be applied in a treaty context, provided that the purpose of a treaty and the GAAR can be reconciled. Ultimately, the author is of the view that certainty in this regard can only be achieved through some form of legislative intervention. 

The Case for Further Reform of the Banks’ Advisory Duty in South Africa Post the Financial Advisory and Intermediary Services Act 37 of 2002

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

The Case for Further Reform of the Banks’ Advisory Duty in South Africa Post the Financial Advisory and Intermediary Services Act 37 of 2002

Authors: WG Schulze and SLW Mokobi

ISSN: 1996-2185
Affiliations: Professor in Banking Law, University of South Africa; Attorney, High Court of Botswana
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 419 – 446

Abstract

The nature and extent of a financial service provider’s (‘FSP’s’) liability for the advice or information that it provides is a core issue globally and is frequently cited in complaints and lawsuits.  Commercial banks are particularly vulnerable to advice liability and cannot afford to downplay the risk as they continue with fast-paced innovation. In this context the Financial Advisory and Investment Services Act (‘FAIS Act’) has attempted to intervene in the FSP– customer relationship by regulating conduct and elevating advisory standards. Unfortunately, the Act is constrained by antiquated distinctions and has failed to improve on the common-law advisory duty. It is hoped that the proposed Conduct of Financial Institutions Bill will improve on this. The current statutory exclusions from the definition of ‘advice’ lead to a dichotomy that is unhelpful in modern banking. Furthermore, the lack of recourse to a statutory mechanism in respect of what are currently deemed ‘non-FAIS’ activities is confusing.  The consequences of the current legislative framework are a lack of legal clarity (which is not good for business), inadequate regulation, and an increase in abusive practices. A reform of the legislation is needed, failing which the courts should develop the common law to impose liability even absent a regulated advisory relationship.