Corporal punishment and the costs of judicial minimalism

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Corporal punishment and the costs of judicial minimalism

Author Patrick Lenta

ISSN: 1996-2177
Affiliations: Associate Professor, Law Faculty, University of Technology Sydney; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 2, p. 185-200

Abstract

In Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SA 1 (CC), the Constitutional Court declared the common-law defence of ‘reasonable corporal punishment’ unconstitutional. This note draws attention to the costs of the court’s embrace of judicial minimalism. I argue that the narrowness of the judgment — the court’s restricting the grounds of its decision to just two — and its shallowness — the Chief Justice’s eschewal of theoretical ambition in particular — results in a failure credibly to justify the restriction of parents’ freedom to raise their children as they see fit. Not only does this justificatory shortfall risk eroding the court’s perceived legitimacy, it also neglects appropriately to educate citizens about the wrong fulness of all parental corporal punishment, undermining the judgment’s potential to bring down the incidence of this practice.

South African Airways makes an emergency landing into business rescue: some burning issues

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

South African Airways makes an emergency landing into business rescue: some burning issues

Author Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Attorney and Notary Public of the High Court of South Africa
Source: South African Law Journal, Volume 137 Issue 2, p. 201-214

Abstract

The initiation of the voluntary business rescue of South African Airways marks the first time in South African law that a state-owned entity has been placed under business rescue. The step poses some challenging legal issues for the field of business rescue. It also holds crucial lessons for the directors of other state-owned companies in financial distress. This note considers some of these burning legal issues, including the duty of the directors of a company that is nearing insolvency to cease trading, how to assess whether a company is financially distressed and should be put under business rescue, and whether the post-commencement financier has a right to vote on the approval of the business rescue plan.

Repudiation of an inheritance by a spouse married in community of property: Govender No v Gounden

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Repudiation of an inheritance by a spouse married in community of property: Govender No v Gounden

Author Michael Cameron Wood-Bodley

ISSN: 1996-2177
Affiliations: Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 2, p. 214-228

Abstract

The note examines the basis of the decision in Govender NO v Gounden 2019 (2) SA 262 (KZD), in which it was found that in terms of s 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 an inheritance of money by a spouse married in community of property can be validly repudiated by the beneficiary spouse alone, without the concurrence of the non-beneficiary spouse, thereby depriving the joint estate of the benefit of the inheritance. The judgment is critically examined in the light of the principles that were decided by the Supreme Court of Appeal in Wessels NO v De Jager NO 2000 (4) SA 924 (SCA). The author argues that the Govender decision cannot be reconciled with the reasoning in the Wessels case. Further problematic aspects of the Govender decision are also examined.