Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

Author: Leona Theron

ISSN: 2958-4973
Affiliations: Justice of the Constitutional Court of the Republic of South Africa
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 1-18
https://doi.org/10.47348/JSAC-IAWJ/2023/a1

Abstract

The number of reported cases of sexual offences is rapidly increasing in South Africa. Parliament has responded to this phenomenon by making various important legislative reforms. Our Constitution recognises, however, that beyond legislative reform, our courts must ensure the transformation of society to ensure that South Africa truly belongs to all who live in it. This means that the courts must confront patriarchal norms entrenched in South Africa’s criminal justice system and in the law itself. The courts have responded to this challenge with commendable vigour. The most recent development is the Constitutional Court’s decision in Tshabalala v S. This case demonstrates the role that our courts can and must play during the ‘pandemic’ of sexual and gender-based violence.

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

Author: S E Weiner

ISSN: 2958-4973
Affiliations: BA LLB; Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 19-50
https://doi.org/10.47348/JSAC-IAWJ/2023/a2

Abstract

Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.

Women pioneers in the judiciary programme – supporting women judges and law students in Southern Africa

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Women pioneers in the judiciary programme – supporting women judges and law students in Southern Africa

Author: Baratang Constance Mocumie

ISSN: 2958-4973
Affiliations: LLM (UNISA); Judge of the Supreme Court of Appeal, South Africa; member of the South African Chapter – International Association of Women Judges; former President, SAC-IAWJ
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 51-68
https://doi.org/10.47348/JSAC-IAWJ/2023/a3

Abstract

Most women in the judiciary and legal practice have no one to mentor them. Those potential mentors who are in senior positions are in court at the same time as the junior women are. The opportunity to empower each other (to bring about the achievement of equality, the empowerment of those previously disadvantaged, and the promotion of the rule of law and justice) is hard to find or create on an individual basis. Women who wish to share their experiences with others to empower them so that they can do the same for others can do so through programmes specifically designed by their associations to meet these objectives. This article explains what the South African Chapter of the International Association of Women Judges (SAC-IAWJ) has done over the years to empower women (those on the bench, those studying law, and those The Competition Appeal Court as a specialist court: in practice) and young people in general. The uniqueness of the various programmes lies not only in empowering women but also in instilling a sense of pride and acknowledging women and their contribution to the development of the law.

To video link or not to video link? Safeguarding vulnerable persons’ right of access to courts in civil matters

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

To video link or not to video link? Safeguarding vulnerable persons’ right of access to courts in civil matters

Author: YT Mbatha

ISSN: 2958-4973
Affiliations: B Proc, Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 69-102
https://doi.org/10.47348/JSAC-IAWJ/2023/a4

Abstract

The purpose of this article is to highlight the need for video link conferences, particularly in civil cases. The articles also deals with the challenges faced by the courts during the COVID-19 pandemic and its impact on access to justice. The article traverses various judgments which highlight the need for South African courts to adapt their systems in line with the technology of foreign jurisdictions, especially the United States, Australia and the United Kingdom. This article emphasises that access to court via video link should not only be available in emergency situations but should also be used to safeguard the rights of vulnerable persons.

The Competition Appeal Court as a specialist court: The challenge of retaining judges

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

The Competition Appeal Court as a specialist court: The challenge of retaining judges

Author: NP Mabindla-Boqwana

ISSN: 2958-4973
Affiliations: BProc LLB (Wits); Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 103-110
https://doi.org/10.47348/JSAC-IAWJ/2023/a5

Abstract

Competition law is about promoting competition in economic markets. It exists to prevent market distortion caused by anti-competitive conduct and practices. To help that process, policymakers have chosen competition law as one of the tools to promote that aim through the Competition Act 89 of 1998. The Competition Appeal Court (CAC) was created centrally to give effect to the aims of the Act. This article focuses on the CAC as a specialist court and considers how the challenge of retaining its judges in the long term can be overcome.

Dismantling South Africa’s scourge – the Constitutional Court rules rape an abuse of power: Tshabalala v S; Ntuli v S

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Dismantling South Africa’s scourge – the Constitutional Court rules rape an abuse of power: Tshabalala v S; Ntuli v S

Authors: Sisi Khampepe and Emily van Heerden

ISSN: 2958-4973
Affiliations: B Proc (Zululand) LLM (Harvard); Justice of the Constitutional Court of South Africa; BA (Law) LLB (Stellenbosch) BCL MPhil (Law) (Oxford); Law clerk to Justice Sisi Khampepe
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 111-117
https://doi.org/10.47348/JSAC-IAWJ/2023/a6

Abstract

In December 2019, the Constitutional Court handed down a significant judgment in the matter of Tshabalala v S, Ntuli v S 2020 (5) SA 1 (CC), holding that the doctrine of common purpose applies to the common-law crime of rape. The judgment has been hailed as an important contribution to South Africa’s jurisprudence and, particularly, to the judiciary’s promise to address gender-based violence in South Africa at a time when numerous cases of gender-based violence and femicide are facing the courts. This case note argues that the judgment is noteworthy for three main reasons. First, the judgment settles the uncertainty in South African law regarding the concept of instrumentality and the applicability of the doctrine of common purpose to the crime of rape. Secondly, it emphasises that rape is more than a sexual act; it is also an unconscionable abuse of power over the most vulnerable members of society. Thirdly, the concurring judgments centre the lived experiences of black women and acknowledge intersecting power inequalities in our society, thereby advancing the project of substantive and meaningful adjudication in South African jurisprudence.