Opposing cynical evictions: A framework of appropriate remedies

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Opposing cynical evictions: A framework of appropriate remedies

Author Jeremy Phillips

ISSN: 1996-2177
Affiliations: LLM Student, University of Fort Hare
Source: South African Law Journal, Volume 137 Issue 4, p. 733-762

Abstract

The South African political landscape has been darkly coloured by inhumane  evictions, exacted to design the social and geographic landscape of the country along  discriminatory lines. A notorious brand of eviction, often resorted to by the apartheid  state, is the ‘cynical eviction’ — an unlawful eviction where the evictee’s home is  demolished and destroyed. Shamefully, cynical evictions have persisted post-1994.  The cynicality of such an eviction lies in the fact that, by destroying the materials of the  home, the defence of impossibility precludes the evictee relying on the mandament van  spolie. While there is consensus that evictees are entitled to relief, there is disagreement  on which remedy should deliver that relief. Developing the mandament van spolie  to bypass the defence of impossibility has been touted as the ideal remedy, whereas  the court in Tswelopele, and subsequent academic commentators, have preferred an  extraordinary remedy based directly on s 26(3) of the Constitution. This article argues  that the debate is a false dichotomy. There are subtle, but critical, differences which  distinguish both remedies. Furthermore, the possessory action should be revived as a  third alternative remedy. With three available remedies, all offering different forms of  relief, evictees have a comprehensive arsenal with which to combat cynical evictions. 

Geographical indications: The cuckoo in the IP nest

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Geographical indications: The cuckoo in the IP nest

Author Sadulla Karjiker

ISSN: 1996-2177
Affiliations: Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 4, p. 763-791

Abstract

This article critically considers the recognition of Geographical Indications (‘GIs’)  as a form of intellectual property (‘IP’), and submits that it is unsuited to protection  as a distinct form of IP. It is submitted that GI protection does not accord with  established principles of IP law (most notably trade-mark law and the common law  of delict), and that its recognition has, in fact, been principally motivated by selfserving  protectionism on the part of the EU. There are no sound reasons to justify  GI protection as a distinct form of intellectual property, and its recognition says  more about the politics of IP law, rather than the merits of this form of protection.  That which is proffered as justifications for its recognition tends to be rhetoric and  unsubstantiated claims, and relies on a revisionist history of the part played by Europe  in the course of the past 400 years. This article seeks to expose the true basis on which  developing countries, former colonies of European nations, are being forced to concede  to demands to provide greater protection for European GIs, which demands harm the  ability of their producers to compete with European producers. 

Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State as Buyer (2019)

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State
as Buyer (2019)

Author Allison Anthony

ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 137 Issue 4, p. 807-810

Abstract

None

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

Authors Rilwan F Mahmoud & Adrian Hugh Bellengère

ISSN: 1996-2177
Affiliations: PhD graduate, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 3, p. 371-388

Abstract

The amendment of the Uniform Rules of Court to include service by electronic mail  has raised the interesting question of service through electronic media other than  electronic mail. Recent developments have partially answered this question with regard  to substituted service via Facebook. However, it is still a relatively novel concept and  has not yet been extended to WhatsApp in South Africa. This note examines the  criteria employed in determining the likelihood of accomplishing substituted service  via WhatsApp. First, the principles underlying substituted service are examined,  followed by an assessment of the impact and reach of social media platforms,  a summary of the initial moves to incorporate them into South African procedural law,  and a description of the technical attributes of WhatsApp. Several judgments from  around the world, tentatively embracing service via WhatsApp, are then discussed,  followed by an assessment of the standards that need to be met in order to ensure  effective service, and the factors that a court needs to consider when faced with such a  request. The note concludes that a reasonable degree of certainty that service can be  achieved by WhatsApp exists, and that it could therefore be an effective medium for  substituted service. 

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

Author Fatima Osman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 3, p. 389-406

Abstract

The Recognition of Customary Marriages Amendment Bill provides that spouses  in polygamous marriages concluded before the commencement of the Recognition of  Customary Marriages Act 120 of 1998 have joint rights of ownership, management  and control over marital property. The Bill creates uncertainty by failing to  explain what is meant by joint rights of ownership and control, which uncertainty  is exacerbated by the incorporation of the terms ‘marital’, ‘personal’, ‘house’ and  ‘family’ property without concrete definitions of these terms. The burden will fall to  courts to re-imagine the antiquated definitions of these concepts in the current socioeconomic  context. Moreover, the amendments are not reconciled within the existing  legal framework. Consequently, women in polygamous marriages concluded before the  Act’s commencement may, counter-intuitively, have greater rights than those women  in polygamous marriages concluded after the commencement of the Act. The note thus  argues for substantial revisions before the Bill is passed. 

The case for asylum seekers’ entitlement to unemployment insurance fund benefits: Musanga v Minister of Labour

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The case for asylum seekers’ entitlement to unemployment insurance fund benefits: Musanga v Minister of Labour

Author Dakalo Singo

ISSN: 1996-2177
Affiliations: Director, Werksmans Attorneys
Source: South African Law Journal, Volume 137 Issue 3, p. 407-423

Abstract

In this case note, the author discusses the unreported high court case of Musanga  v Minister of Labour. The applicants were a group of asylum seekers who  challenged the constitutionality of long-standing statutory provisions and institutional  conduct that effectively excluded them from being able to claim benefits from the  Unemployment Insurance Fund (‘UIF’), despite the fact that they had contributed  to the UIF during their employment. The note analyses the arguments made by the  applicants to establish that their constitutional rights to equality, human dignity and  access to social security (as encapsulated in the Bill of Rights of the Constitution of  the Republic of South Africa, 1996) had been unjustifiably infringed. The note also  considers the counter-arguments by the respondents who opposed the application.  Having outlined and evaluated the parties’ respective arguments, the author summarises  the salient aspects of the court order which, importantly, confirmed (i) the constitutional  invalidity of the exclusionary provisions and conduct, and (ii) that asylum seekers are  entitled to claim benefits from the UIF. The note highlights the importance of the case  in realizing South Africa’s social-justice ambitions. 

Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality

Author Z T Boggenpoel

ISSN: 1996-2177
Affiliations: Professor in Public Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 3, p. 424-438

Abstract

This note analyses the judgment in Ngomane v City of Johannesburg Metropolitan  Municipality from the perspective of property law and constitutional property  law. It highlights the tendency of South African property law to compartmentalise  remedies into common-law, legislative and constitutional remedies, especially in the  case of remedies for violations of constitutional rights. It is argued that the interplay  between remedies from different sources of law should not be overlooked, but in fact  renegotiated every time the possibility arises that existing common-law remedies can  be used to give effect to constitutional rights. The note also reconsiders the court’s  conclusion that constitutional damages be awarded for the infringement of the property  clause (s 25 of the Bill of Rights), and argues that a more principled discussion was  necessary in the judgment in order to conclude that there was in fact an infringement  of s 25(1). The note suggests that although the judgment should be welcomed for  vehemently speaking out against the violation of constitutional rights, the case could  certainly have benefited from a more principled and clear discussion of the interplay  between constitutional and common-law remedies on the one hand, and the violation  of the constitutional right to property, on the other hand. 

The South African Constitution and the human-rights obligations of juristic persons

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The South African Constitution and the human-rights obligations of juristic persons

Author Bonita Meyersfeld

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 137 Issue 3, p. 439-478

Abstract

The South African Bill of Rights binds both state actors and, in certain cases, natural  and juristic persons. Horizontality extends the ambit of the Constitution beyond  the regulation of the state, to include private persons. This article proposes that in  certain circumstances horizontality may include situations where private persons,  in particular, juristic persons, are required to commit financially to the fulfilment of the  socio-economic rights of indigent people.