What’s in a sentence? MK & Zuma v The IEC

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

What’s in a sentence? MK & Zuma v The IEC

Author: Simon Thompson

ISSN: 1996-2177
Affiliations: Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 2, p. 207-223
https://doi.org/10.47348/SALJ/v142/i2a1

Abstract

The Constitutional Court’s confirmation that former President Jacob Zuma was disqualified from standing as a candidate in South Africa’s general election on 29 May 2024 created waves throughout political and legal circles. In this case note, I assess the treatment of one particular legal issue on which a unanimous Electoral Court and a unanimous Constitutional Court reached opposite conclusions, namely whether Zuma’s sentence for contempt of court fell within the ambit of the disqualification provision contained in s 47(1)(e) of the Constitution. Through the prism of the practical, inclusive method of constitutional interpretation, I criticise the Electoral Court for its handling of the issue and deem its conclusion, namely that Zuma’s sentence fell outside the provision, to be manifestly wrong. By contrast, I commend the Constitutional Court for its handling of the issue and find its conclusion, namely that Zuma’s sentence fell within the provision, to be patently correct.

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

Author: J C Sonnekus

ISSN: 1996-2177
Affiliations: Professor in Private Law, University of Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 224-247
https://doi.org/10.47348/SALJ/v142/i2a2

Abstract

An executor’s remuneration for the administration of the estate is determined according to a prescribed tariff in the absence of an explicit clause in the will, and the Master taxes it according to the gross value of assets in the estate. The executor is entitled to receive the appropriate remuneration out of the estate’s assets. If the gross value includes the value, for example, of the joint estate where the deceased was married in community of property or of a fideicommissary asset that formed part of the deceased’s estate as fiduciary assets, this inflated value translates into an enhanced calculated remuneration that the executor could receive out of the residue of the assets of the estate. This, in turn, results in the unjustified impoverishment of all other beneficiaries and is to the unjustified benefit of the fideicommissary.

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 247-259
https://doi.org/10.47348/SALJ/v142/i2a3

Abstract

Unmarried permanent life partnerships have become a common phenomenon in South Africa. In EW v VH 2023 (4) SA 123 (WCC), the Western Cape High Court had to deal with an application for maintenance pendente lite and a contribution towards costs following the termination of a ‘permanent romantic relationship’. Part of the application was a prayer for developing the common law to recognise a claim for ongoing maintenance for life partners. An interim and constitutionally sound remedy for such couples upon the breakdown of their relationship needed to be found in the interests of justice. We examine the court’s constitutional duty to promote the spirit, purport and objects of the Bill of Rights when developing the common law and conclude that the lack of maintenance pendente lite protection for life partners undoubtedly constitutes unfair discrimination against a traditionally disadvantaged group: unmarried, cohabiting women.

The voluntary assumption of an enforceable support duty — Comments on the ruling in NM v BM

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

The voluntary assumption of an enforceable support duty — Comments on the ruling in NM v BM

Author: Amanda Barratt

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 2, p. 260-275
https://doi.org/10.47348/SALJ/v142/i2a4

Abstract

In the case of NM v BM [2024] ZAWCHC 254, a stepfather had been providing generous financial support to his stepchildren while he was married to the children’s mother. The court was not satisfied with the stepfather’s abrupt discontinuation of financial support immediately upon splitting from the children’s mother. The note explores whether an order requiring continued maintenance from a stepparent could be supported by the Supreme Court of Appeal ruling in Road Accident Fund v Mohohlo 2018 (2) SA 65 (SCA), which provided that an enforceable duty of financial support could be created through the voluntary assumption of such a duty in a familial setting.

Rooftop solar panels: Movable or immovable?

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Rooftop solar panels: Movable or immovable?

Author: Reghard Brits

ISSN: 1996-2177
Affiliations: Extraordinary Professor, University of the Western Cape; Research Fellow, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 2, p. 276-310
https://doi.org/10.47348/SALJ/v142/i2a5

Abstract

This article investigates whether rooftop solar panels form part of the building (immovable property) on which they are installed or whether they remain independent movable things even after their attachment to a roof. The enquiry is conducted against the backdrop of the uncertainties and debates that plague the doctrine of accession (accessio) in terms of which the owner of land is automatically the owner of all accessories thereof — that is, things permanently attached to the property. Based on the current state of the law, the courts are likely to regard rooftop solar panels as movable things where it was not the intention of the owner of the movable to forfeit ownership thereof (like a creditor who had reserved ownership in a credit agreement), even if the objective factors alone would have indicated that the solar panels had acceded to the building. This approach is criticised, and the argument is made that only the objective factors surrounding the physical installation, as informed by common sense and the prevailing standards of society, should be considered — not anyone’s subjective intention. After considering these factors, the article argues that most rooftop solar panels are part of the immovable property and are thus automatically owned by the landowner. If this outcome is unsatisfactory for commercial or policy reasons, it is recommended that the legislature should intervene with an express statutory exception for solar installations and/or a more general mechanism that would enable the registration of notarial bonds over objects attached to a building. Either or both solutions will create more certainty than the current approach of considering the owner’s intention on a case-by-case basis.

Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

Author: E J Marais

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 311-346
https://doi.org/10.47348/SALJ/v142/i2a6

Abstract

In Tenox Management Consulting Inc v Scania South Africa (Pty) Ltd [2022] ZAGPJHC 737, the lessee of trucks refused to return them to the lessor after the lessee committed a breach of contract. The lessor then remotely deactivated the trucks without a court order, as per its agreement with the lessee in the event of a breach. The lessee subsequently instituted the mandament van spolie (‘mandament’) against the lessor to restore the trucks to the lessee in an operational state. The court ruled in favour of the lessee by holding that the lessor’s conduct amounted to unlawful spoliation. The decision raises several points worthy of investigation, namely: the type of ‘possession’ needed for the mandament (specifically whether the lessee has possession for purposes of this remedy); the legal-political function of possession (which concerns the rationale for possessory protection under the mandament); whether parties may agree that one could spoliate or dispossess the other (via remote deactivation) in an extra-judicial manner; whether the prohibition of co-possession applies in our law and whether it excludes the mandament as between lessees and lessors; the difference between lease and agency; and, finally, the intention needed for the mandament. A doctrinal and constitutional analysis reveals that the decision is, for the most part, to be welcomed.