FAIS Ombud determinations: Ntombekhaya Cecilia Tsupe v Zwelonke Burial Association and Mlondolozi Patrick Maseti Case number FSOS 00192/17-18/WC 2

FAIS Ombud determinations: Ntombekhaya Cecilia Tsupe v Zwelonke Burial Association and
Mlondolozi Patrick Maseti
Case number FSOS 00192/17-18/WC 2

Author Daleen Millard

ISSN: 2517-9543
Affiliations: Department of Private Law, Law Faculty, University of Johannesburg
Source: Juta’s Insurance Law Bulletin, Volume 22 Issue 2, 2019, p. 58 – 60

Abstract

None

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 29 Issue 1, p. 1-28
https://doi.org/10.47348/FUND/v29/i1a1

Abstract

Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

Author Mahlubandile Ntontela

ISSN: 2411-7870
Affiliations: LLB LLM PGDip in Labour Law Practice PGDip in Drafting and Interpretation of Contracts. Lecturer, Department of Criminal Law and Procedure, Nelson Mandela University
Source: Fundamina, Volume 29 Issue 1, p. 29-52
https://doi.org/10.47348/FUND/v29/i1a2

Abstract

Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts’ challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities. Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century — Part Two

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century — Part Two

Authors Stephen Allister Peté and Paul Swanepoel

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) MPhil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal; MA (Hons) (University of St Andrews) LLB (University of Natal) MSc PhD (University of Edinburgh). Senior lecturer, School of Law, University of KwaZulu-Natal
Source: Fundamina, Volume 29 Issue 1, p. 53-79
https://doi.org/10.47348/FUND/v29/i1a3

Abstract

Mahmood Mamdani has argued that a system of “define and rule” lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of “race” dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani’s general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to “race” and “tribe”. It is the contention of this contribution that Mamdani is correct in his assessment that “define and rule” lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved on the ground. Certain individuals and groups tended to fall between broad definitions of “race” and “tribe”, both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony’s newspapers around that time. Even though there may have been relatively few individuals who fell “in-between” the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

Author Gerda van Niekerk

ISSN: 2411-7870
Affiliations: BComm LLB LLD (UP). Senior lecturer, Department of Mercantile Law, University of Limpopo
Source: Fundamina, Volume 29 Issue 1, p. 80-109
https://doi.org/10.47348/FUND/v29/i1a4

Abstract

The debate continues about whether the South African Reserve Bank should be nationalised or not. This contribution looks at the evolution of central banks, as well as at the origin and historical background of the central banks in three countries, namely the South African Reserve Bank, the Reserve Bank of Australia and De Nederlandsche Bank. The shares in the South African Reserve Bank belong to private shareholders; the Reserve Bank of Australia has been the property of the government of Australia since its inception; and De Nederlandsche Bank was nationalised in 1948. The potential nationalisation of the South African Reserve Bank will come with a hefty price tag, as the shareholders will have to be compensated for the value of their shares. Section 224 of the Constitution of the Republic of South Africa, 1996 determines that the South African Reserve Bank should “protect the value of the currency in the interest of balanced and sustainable economic growth”. The constitutional power of the Bank to be responsible for monetary policy will not change if it is nationalised. This contribution recommends that the South African Reserve Bank not be nationalised due to the big cost thereof to South Africa and because not much will be achieved by such a step.

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

Authors: Michael K Quartey, Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: BA LLB BL (Ghana) LLM (University of Johannesburg); Legal Associate: Ankomah Mensah
& Associates, Ghana; BA LLB (Ghana) LLM LLD (University of Johannesburg); Senior Postdoctoral Research
Fellow, Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg, South Africa; Research Associate, Research Centre for Private International Law in Emerging Countries (RCPILEC), Faculty of Law, University of Johannesburg, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 1 – 40
https://doi.org/10.47348/JCLA/v10/i1a1

Abstract

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

Author: Prince Obiri-Korang

ISSN: 2521-2605
Affiliations: BSc LLB (Cape Coast) PLT LLM LLD (Johannesburg). Senior Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 41 – 57
https://doi.org/10.47348/JCLA/v10/i1a2

Abstract

A contract for the sale of goods is the most commonly used transaction domestically and at international level. Regardless of its relevance, there has been a wide variation in the concept of “sale” has existed in the course of legal history across the various legal systems of the world. Although a sales transaction may be rightly described as the most universal transaction, it is pertinent to point out that there is very little agreement on one of the transaction’s most fundamental incidents, which is the “passing of property”. In most legal systems, aside from the generally established rule on when the property in goods may pass from a buyer to a seller, property in goods can also pass at any time depending on the circumstances or terms of the relevant contract. Despite the above proposition, it is important for all persons who engage in a sale transaction to have an understanding as to when the property in the goods that they intend to purchase or that they have purchased passes from the seller to them. This article primarily focuses on when property passes in a sale contract in the legal systems of the UK and Ghana. This is relevant because when a buyer enters a sale contract, it is the property in the goods that they bargain for and not the use or mere possession or any other aspect of ownership.