Contributing to the Achievement of Justice for Victims of Sexual and Gender-Based Violence by Implementing the Legacy and Experience of International Criminal Courts and Tribunals

Contributing to the Achievement of Justice for Victims of Sexual and Gender-Based Violence by Implementing the Legacy and Experience of International Criminal Courts and Tribunals

Author: Mispa Roux

ISSN: 1996-2193
Affiliations: LLB LLM LLD (UJ), Senior Lecturer, Department of Public Law, Faculty of Law, University of Johannesburg; Head: Sexual and Gender-Based Violence Unit, and Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg.
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 455 – 480

Abstract

International criminal courts and tribunals have been questioning, improving, and developing the laws on sexual and gender-based violence (“SGBV”), including the rules of procedure and evidence relating to it. The purpose of this article is to evaluate the legacy of these international criminal courts and tribunals in ensuring that all victims of SGBV achieve justice. It is argued that this can, and should, change the archaic and misogynistic way in which laws on SGBV have historically been implemented globally. This article suggests that justice for victims of SGBV can be achieved in three different ways, which are to be implemented in conjunction with one another. Firstly, justice can be achieved by way of accountability, focusing mainly on individual criminal responsibility. Secondly, justice can be achieved by way of reparation that may be ordered by an international criminal court or tribunal as a penalty, in addition to imprisonment. The third and final way suggested to achieve justice for victims is by eradicating the culture of silence, denial and stigmatisation in which victims are shrouded. The article concludes by briefly examining the need for a holistic approach in achieving justice for victims of SGBV that will involve all role-players and will implement all three methods simultaneously. These three levels of justice will be substantiated with reference to the constitutive acts, rules of procedure and evidence, best practice and policy manuals, and jurisprudence of the various international criminal courts and tribunals.

Using the Rome Statute in the Democratic Republic of Congo’s Domestic Courts to Investigate and Prosecute Sexual and Gender- Based Violence Committed in Armed Conflicts

Using the Rome Statute in the Democratic Republic of Congo’s Domestic Courts to Investigate and Prosecute Sexual and Gender-Based Violence Committed in Armed Conflict

Author: Margaret Ashiru

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Senior Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 481 – 504

Abstract

In 2015 the President of the Democratic Republic of Congo (“DRC”) promulgated the adoption of the bill implementing the International Criminal Court’s Rome Statute into the DRC’s domestic laws. The promulgation of the Act implementing the Rome Statute, published in the DRC’s Official Journal, allowed the DRC to give full effect to the Rome Statute and have its domestic laws amended in line with the Rome Statute. This article analyses the Act in relation to sexual and gender-based crimes committed in armed conflict situations. This article also considers two cases to assess how mobile judges have applied the Act since its promulgation in the investigation and prosecution of such crimes, thereby identifying the challenges faced by the courts in applying international crimes, and how they have tried to overcome these challenges.

Curbing the Use of Foreign Trusts to Bypass Controlled Foreign Company Rules: A Critical View of Recent Taxation Amendments

Curbing the Use of Foreign Trusts to Bypass Controlled Foreign Company Rules: A Critical View of Recent Taxation Amendments

Author: Reinhard Rudd

ISSN: 1996-2193
Affiliations: B Com (Hons) M Com CA (SA), Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 505 – 525

Abstract

The legislature set out to close the gap in the tax treatment of schemes where a foreign trust is interposed between a South African resident and a foreign company. With regards to South African resident companies, this was done by amending the definition of a Controlled Foreign Company (“CFC”) to include any company of which the financial results would be included in the consolidated financial statements of the resident company in terms of IFRS 10. As far as resident natural persons are concerned, after failing to include such companies in the definition of a CFC, amendments were made to the provisions relating to the taxation of trusts. In this regard, section 7(8)(aA) and section 25B(2B) of the Income Tax Act were introduced, both of which require the foreign dividend exemption in terms of section 10B(2)(a) to be ignored when determining whether an amount would have constituted income had the relevant person been a resident. In this article, a number of concerns regarding these amendments are discussed. First, consideration is given as to whether the amendments to section 7(8) were needed at all considering court decisions regarding the interpretation of the provisions of section 7. Next, consideration is given to whether the deemed net income inclusion which would result from determining the income of the foreign trust as if it were a resident could trigger the attribution rule in terms of section 7(8). The question is also raised why the legislature only required section 10B(2)(a) to be ignored in determining whether an amount would have constituted income had the person been a resident and not also section 10B(2)(c). Lastly, consideration is given to whether the amount included in the income of a beneficiary of a foreign trust in terms of section 25B(2A) retains its nature as income or whether it becomes capital in nature, which would result in excessively harsh treatment of the amount in the hands of the resident beneficiary.

The Capacity Provisions in the Companies Act 71 of 2008

The Capacity Provisions in the Companies Act 71 of 2008

Author: Etienne A Olivier

ISSN: 1996-2193
Affiliations: LLB LLM, Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 526 – 547

Abstract

This article analyses the capacity provisions in the Companies Act 71 of 2008 (the “Act”). According to section 20(1) of the Act, ultra vires contracts are not void; the application of this rule should not depend on the title of the company’s representative. It should be possible to restrain proposed ultra vires action and executory ultra vires contracts by means of section 20(5). However, wholly executed ultra vires contracts should be irreversible on capacity grounds. Furthermore, once an ultra vires contract has been ratified by a special resolution in terms of section 20(2), the company’s insiders should lose the right to restrain the contract in terms of section 20(5); conversely, successful restraint should prevent subsequent ratification. The authority of the board of a limited capacity company should still be limited to the conclusion of intra vires acts, regardless of the validity of ultra vires contracts. The purpose of the optional RF provisions and the capacity-linked statutory doctrine of constructive notice is not clear: section 19(5)(a) does not provide any obvious benefit to limited capacity RF companies with regards to avoiding liability on an ultra vires contract. In conclusion, the capacity provisions create too much uncertainty and risk for a company’s existing and future creditors and should be amended.

The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME [2017] 2 All SA 171 (GP)]

The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME [2017] 2 All SA 171 (GP)]

Author: Themba Skosana

ISSN: 1996-2193
Affiliations: LLB LLM (UNISA), Senior Lecturer, Department of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 548 – 558

Abstract

Commercial surrogacy is prohibited in South Africa. In Ex parte HPP, the court dealt with a surrogate facilitation agreement which was tainted by an illegal surrogate motherhood agreement as a result of payments of surrogate facilitation fees. The court applied contract law principles to justify confirmation of the two surrogate motherhood agreements and to avoid the penal provisions of the Children’s Act applicable to such illegality. This article argues that this is the incorrect approach and that the court must focus on the provisions of the Act that, except for specific situations, forbid payments in connection with the confirmation or execution of surrogate agreements.

Critical Perspectives on the Allocation of Participation Quotas to Sections in Mixed-use Sectional Title Schemes; the Adjustment of Quotas after Extensions to the Scheme by the Addition of Non-residential Sections; and the Modification of Quotas by the Body Corporate in Mixed-use Schemes

Critical Perspectives on the Allocation of Participation Quotas to Sections in Mixed-use Sectional Title Schemes; the Adjustment of Quotas after Extensions to the Scheme by the Addition of Non-residential Sections; and the Modification of Quotas by the Body Corporate in Mixed-use Schemes

Author: CG van der Merwe

ISSN: 1996-2193
Affiliations: BA LLB BA (Hons) and BCL (Oxon) LLD, Research Fellow, Department of Private Law, Stellenbosch University, Emeritus Professor in Civil Law, University of Aberdeen
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 179 – 200

Abstract

This tale of three courts tells the story of how three South African courts, starting with the Durban Division, followed by the Pietermaritzburg full court, and culminating in the Supreme Court of Appeal, addressed the tribulations encountered in a single mixed-use sectional title scheme. In a mixed-use scheme, the developer has unfettered discretion, first, to allocate quotas to each non-residential section in the scheme, and second, to allocate a percentage of the total participation quotas to the non-residential component of the scheme. The legislation intended that a fairer result would be achieved if par value, as opposed to floor area, were used for the allocation. I propose that the developer should be compelled to disclose the formula he or she employs, both for allocating quotas to commercial sections and for allocating the percentage to the non-residential component. This will facilitate the adjustment of, first, commercial sections’ quotas; and second, the initial percentage allocated to the non-residential component where that component is enlarged by the addition of a further commercial section to the scheme. In the instant case, this never happened, with dire consequences for the body corporate. The Sectional Titles Schemes Management Act 8 of 2011 allows the body corporate to modify the ratio for levy contributions by adopting a special resolution authorising the insertion of a modifying formula in the rules of the scheme. I contend that the insertion in a conduct rule, and not a management rule, would suffice. As the New South Wales and German legislative templates for the promulgation of the first Sectional Titles Act 66 of 1971 do not contain a proviso requiring the written consent of an owner adversely affected by the modification, I propose that this proviso should be eliminated and that the ombud service should be authorised to modify an existing method of allocation that is blatantly unfair and causes grave disharmony in the scheme.