A Systemically Correct Approach in State Evictions

by | Feb 15, 2021 | SLR, SLR V31 I2

A Systemically Correct Approach in State Evictions

Author: Sue-Mari Viljoen

ISSN: 1996-2193
Affiliations: BComm (Law) LLB LLD, Associate Professor, University of the Western Cape, Department of Private Law
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 201 – 225

Abstract

Evictions at the hand of the state have been litigated and adjudicated with reference to section 26(3) of the Constitution of the Republic of South Africa (“Constitution”) and section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”); administrative law principles have not featured to determine the substantive fairness of such decisions. It is argued that the courts’ methodological approach in these cases has been systemically incoherent. The application of administrative law principles can arguably complement this area of law if proportionality is incorporated as the requisite standard for reasonableness. A proportionality analysis not only requires a delicate balance between the eviction of unlawful occupiers and the objective of the state’s action, but also a clear understanding of the impact of such an order. From a methodological perspective, it is argued on the basis of the first subsidiary principle that a) administrative law should find application in evictions at the hand of the state; b) the courts are required to first interpret legislation that has been enacted to give effect to constitutional rights to establish whether an eviction order should be granted or not; and c) the proportionality requirement in terms of administrative law should bring the human factor to the forefront of a substantive fairness enquiry in the context of state evictions.

Mediation as a Tool to Manage and Resolve Class Actions

by | Feb 15, 2021 | SLR, SLR V31 I2

Mediation as a Tool to Manage and Resolve Class Actions

Author: Theo Broodryk

ISSN: 1996-2193
Affiliations: BA LLB LLD (Stell), Associate Professor and Manager: Law Clinic, Stellenbosch University
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 226 – 248

Abstract

The importance of managing class actions effectively is evidenced by the fact that manageability problems could potentially result in the termination of a class action. This article evaluates court-annexed mediation as a tool that our courts could utilise to assist it in managing, and possibly resolving, class actions. The article considers mediation to be a valuable case management tool, even when it fails to lead to immediate settlement of the dispute. Where it does not result in settlement of the dispute, mediation may nevertheless have value from the perspective of, for example, a potential partial settlement of the dispute or by providing a party with valuable information of the other party’s case. Ultimately, however, mediating disputes may have the effect of relieving our superior courts’ high caseload, as well as shielding the parties and the courts from the high costs and delays generally involved in civil litigation. This article considers the mediation approaches in prominent foreign jurisdictions, including Australia, Canada and the United States of America, with a view to evaluating whether and to what extent they could find application within a South African context.

Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

by | Feb 15, 2021 | SLR, SLR V31 I2

Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

Authors: AL Stander en HJ Kloppers

ISSN: 1996-2193
Affiliations: BIuris LLM LLD Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; BComm LLB LLM LLD Nagraadse Diploma: Finansiële beplanning Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 249 – 269

Abstract

The application of section 157(1) of the Insolvency Act 24 of 1936 (“the Act”) that concerns a formal defect or irregularity requires careful consideration. Many court cases have already been decided on this aspect and over the years there have been several endeavours to define “a formal defect”. In the Gauteng Division of the High Court and the KwaZulu-Natal Division of the High Court, there are currently different approaches to the application of this phrase in section 4(1) of the Insolvency Act, due to different interpretations of the term “formal defect”. In the first-mentioned division, it is the view that if section 4(1), read with section 157, means that a notice of surrender published more than 30 days before the relevant date is valid (provided that a court does not in due course find that a substantial injustice has occurred), it would create uncertainty. Effectively, a debtor will be able to secure and control a suspension of execution. That was clearly not what the legislature intended. In the KwaZulu-Natal division, the view is that the premature publication of a notice of surrender of an estate under section 4(1) is a formal defect or irregularity within the meaning of that phrase in section 157(1) of the Act. The publication itself is therefore not rendered invalid by the defect. The extent to which the applicant has complied with or deviated from the procedural requirements of the Act is a factor to be considered in exercising the court’s discretion in terms of section 6 of the Insolvency Act. However, the different approaches of the two divisions of the High Court create uncertainty. In the recent case of Swart v Starbuck, the Constitutional Court applied, among other things, section 157(1) to maintain the validity of an action by the Master. It is argued in this article that neither the majority decision nor the minority ruling has given sufficient consideration to the characterisation of “formal defect” in order to address the uncertainty about the application of this section.

Living Wills: What is the Current Legal Status in South Africa?

by | Feb 15, 2021 | SLR, SLR V31 I2

Living Wills: What is the Current Legal Status in South Africa?

Author: Gertruida Grové

ISSN: 1996-2193
Affiliations: BA LLB LLM (US) (LLD) (Pret), Attorney of the High Court of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 270 – 298

Abstract

In this article the current legal status of living wills (advance directives) in South Africa is investigated. The legal enforcement of living will documents should allow compos mentis persons to state their medical instructions in writing in advance. These instructions should be adhered to in medical decision-making processes in situations where the makers of such living wills are no longer able to convey their medical instructions contemporaneously, for example, in states of temporary or permanent unconsciousness. The historical and current legal debate on living wills in South Africa is explored. It is found that there are currently legal lacunae in the South African law, as living wills and enduring powers of attorney which could be incorporated into living wills have not yet been found to form part of our common law and no living will-specific legislation has been enacted. As a result of the legal lacunae there is much legal uncertainty which can, for example, be seen by the varying terminology used by the legal and medical fraternity regarding living wills and related documents. These inconsistencies lead to much confusion and subsequent varying enforcement standards. The Law Reform Commission has investigated the legal lacunae; its reports and suggestions for draft legislation are discussed. The applicable provisions of the National Health Act 61 of 2003 as well as draft legislation, specifically the Draft Bill on End of Life Decisions, 1998, and the National Health Amendment Bill, 2019, the applicable case law and ethical guidelines, including the Health Professions Council of South Africa Guidelines and the South African Medical Association Guidelines, are discussed. The legal lacunae should be addressed to promote legal certainty in South Africa on the enforceability of living wills. This would enhance the doctor-patient relationship and promote the protection of patients’ fundamental human rights.

Curbing the Abuse of the Trust Form: The Inclusion of Penalty and Prohibition Provisions as well as Compulsory Audits in the Trust Property Control Act 57 of 1988

by | Feb 15, 2021 | SLR, SLR V31 I2

Curbing the Abuse of the Trust Form: The Inclusion of Penalty and Prohibition Provisions as well as Compulsory Audits in the Trust Property Control Act 57 of 1988

Author: L Manie

ISSN: 1996-2193
Affiliations: LLB LLM LLD (UWC), Senior lecturer, Department of Private Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 297 – 314

Abstract

The abuse of the trust form has become prevalent in recent times. As a consequence our courts have relied on other branches of law to find remedies to assist third parties who contract with trusts. This article analyses some of these remedies, as well as amendments to the Trust Property Control Act which could provide assistance in combating the abuse of the trust form. There are, however, certain remedies which should continue being developed by our courts.

The Enforceability of the By-Laws of District Municipalities on Local Municipalities: The Case of Solid Waste Disposal

by | Feb 15, 2021 | SLR, SLR V31 I2

The Enforceability of the By-Laws of District Municipalities on
Local Municipalities: The Case of Solid Waste Disposal

Authors: NF de Villiers, HJ van As and JC Botha

ISSN: 1996-2193
Affiliations: BIuris Dipl Juris LLB LLM, Attorney, Port Elizabeth; BIuris LLB LLD NDip (Pol), Professor, Nelson Mandela University, Port Elizabeth; BA LLB LLD, Associate Professor, Nelson Mandela University, Port Elizabeth
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 315 – 343

Abstract

When waste disposal services are regionalised, the result is that waste disposal services are not the principal responsibility of local municipalities. Instead, they are shared between local and district municipalities. The regionalisation and regulation of solid waste disposal is a contentious issue and raises numerous questions. These include the issue of whether a district municipality may adopt by-laws to regulate regional waste disposal services, and also whether a local municipality benefiting from the service is bound thereby. A significant challenge for the regionalisation process is the lack of constitutional and legislative guidance on the implementation procedures needed and the overarching nature of the functions and powers of the impacted local and district municipalities. This article claims that district municipal by-laws may standardise the regional waste disposal function and that these by-laws, although not without limitations, should be enforceable on local municipalities, provided that the principles of cooperative governance and public participation are promoted.

The Right to Life as an Alternative Avenue for the Enforcement of the Right of Access to Adequate Housing in Zimbabwe

by | Feb 15, 2021 | SLR, SLR V31 I2

The Right to Life as an Alternative Avenue for the Enforcement of the Right of Access to Adequate Housing in Zimbabwe

Author: Justice Alfred Mavedzenge

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD, Researcher at the Democratic Governance and Rights Unit, University of Cape Town, Legal Advisor at the International Commission of Jurists
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 344 – 373

Abstract

The Constitution of Zimbabwe, 2013 (“Constitution”) does not expressly guarantee every person the right of access to adequate housing, yet the country is bedevilled with an acute national housing crisis. However, the Constitution guarantees the right to life for every person and requires that the rights enshrined in the Bill of Rights be interpreted in a manner which best protects and promotes the constitutional value of human dignity. It also requires courts to interpret constitutional rights in a manner which promotes the fulfilment of international obligations arising from treaties and conventions which Zimbabwe has signed and ratified. The Constitution also requires courts to interpret constitutional rights in a way that incorporates state policy objectives enshrined in Chapter 2 of the Constitution. In this article, I engage with these constitutional rules of interpretation and demonstrate that they allow the right to life to be interpreted in a way that incorporates the right of access to adequate housing in Zimbabwe. Given that Zimbabwean courts are yet to develop their own jurisprudence on the interpretation of the right to life, I make considerable reference to foreign case law from comparative jurisdictions, namely South Africa and India, although I also critically engage with counter-arguments from other jurisdictions.

Too much of a good thing: When transitional justice prescriptions may not work

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Too much of a good thing: When transitional justice prescriptions may not work

Authors: VO Ojo and N Filbert

ISSN: 1996-2118
Affiliations: LLB LLM; Doctoral researcher in International Criminal Law, the Faculty of Law Humboldt Universitaet zu Berlin. Project Manager and Researcher, Future Challenges NGO, Nigeria; LLB LLM PhD; Doctoral researcher, Faculty of Law, Humboldt Universitaet zu Berlin, Germany. Assistant Lecturer, University of Dar es Salaam School of Law, Tanzania. Assistant Lecturer, University of Dar es Salaam School of Law
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 526 – 542
https://doi.org/10.47348/SACJ/v33/i3a1

Abstract

Transitional justice developed as a pragmatic concept prescribing a set of mechanisms to be used by societies or countries experiencing systematic periods of armed conflicts or emerging from authoritarian regimes characterised by egregious violations of human rights or humanitarian law. While relative success stories of its utilisation have been recorded, questions have been raised regarding the recent tendency to prescribe transitional justice for societies which have not or are yet to undergo any transition. Through its lack of success in Nigeria and debatable effectiveness in Uganda, the article shows that transitional justice mechanisms are not a cure-all. While it does not contend that there is a perfect notion of transitional justice, the article proposes that transitional justice mechanisms must be designed from the ground up, with the victims at the centre of the process. While transitional justice is a global project, this article argues that its success can be achieved when its applicability and administration take into account the contextual and indigenous focus with a move towards localising its mechanisms.

Transitional justice and constitutionalism: The case of Ghana

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Transitional justice and constitutionalism: The case of Ghana

Author: Marian Yankson-Mensah

ISSN: 1996-2118
Affiliations: LLB (Kwame Nkrumah University of Science and Technology), LLM (University of
the Western Cape), Dr Iur (Humboldt Universität zu Berlin); Project Officer, International Nuremberg Principles Academy, Nuremberg, Germany.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 543 – 562
https://doi.org/10.47348/SACJ/v33/i3a2

Abstract

The delicate process of constitution-making during transition covers a range of issues, but usually features questions on how to address past human rights violations, change repressive laws, recognise basic rights and reform state institutions. Hence, the constitution-making process can have significant implications on the transitional justice mechanisms that are adopted and how they are implemented. In the case of Ghana, the 1992 Constitution came into force after decades of political instability. On 28 April 1992, a draft constitution for Ghana’s fourth republic was approved in a referendum. As part of the transitional provisions in the 1992 Constitution, amnesty provisions were enshrined to protect members of all previous military regimes from prosecution. However, the 1992 Constitution did not contain express provisions for initiation of other transitional justice mechanisms. In a bid to reflect on the rarely examined relationship between transitional justice mechanisms and constitutionalism, this paper shall examine Ghana’s amnesty laws, truth commission and reparative measures in relation to the constitution-making process and constitutional norms. The paper opines that as separate processes towards a common end, proper synchronisation of Ghana’s transitional justice processes and constitution-making could have shaped the country’s transitional justice mechanisms in the right direction towards achieving their perceived goals.

Confronting past gross human rights violations in Ethiopia: Taking stock of the Reconciliation Commission

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Confronting past gross human rights violations in Ethiopia: Taking stock of the Reconciliation Commission

Authors: Marshet T Tessema and Markos Debebe Belay

ISSN: 1996-2118
Affiliations: LLB LLM PhD; Assistant Professor of Law, Hawassa University, Ethiopia; LLB LLM.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 563 – 579
https://doi.org/10.47348/SACJ/v33/i3a3

Abstract

It is a trite fact that in the recent past decades, Ethiopia has been under a one-party dictatorship. The ruling political party encountered protracted civil protest and at times, an armed struggle. This has led to the overthrow of former party leaders and the dictatorship. The protracted protest against the party has led to change from within the ruling party. Thus, with the coming to power of Prime Minister Abiy Ahmed, there has been a widespread change in the political and legal landscape. Ethiopia has adopted various mechanisms including establishing a reconciliation commission as a means to reckon with legacies of a repressive past. This article takes stock of the major problematic areas of the Ethiopian Reconciliation Commission establishment law, Proclamation 1102/2018, with the aim to propose measures to be taken to rectify its blind spots.