Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case

2006 ◽  
Vol 39 (4) ◽  
pp. 961-962
Author(s):  
Peter Li
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Class Action ◽  
University Of Toronto ◽  
Legal Case ◽  
The Supreme Court ◽  
Chinese Canadians ◽  
Tax Payers ◽  
Law Professors ◽  
Court Of Appeal

Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case, David Dyzenhaus and May Moran, eds., Toronto: University of Toronto Press, 2005, pp. 471.This is a collection of fifteen essays that addresses different aspects of the Chinese head tax case. Edited by two law professors and written mostly by lawyers and law professors, the collection has a strong legal flavour. The book begins with the legal case of Mack vs. Attorney General of Canada. However, the book does not provide a succinct summary of the case. In brief, the case involves three Chinese Canadians, Shack Jang Mack, Quen Ying Lee and Yew Lee, filing a statement of claim through their attorney in December, 2000, in a class action on behalf of head tax payers in the Ontario Superior Court. In all, the case went through three courts, and the original ruling dismissing the claim of head tax payers was upheld by the Court of Appeal and the Supreme Court.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

scholarly journals Extending The Scope Of Proprietary Remedies To Recovery Of Pure Profits From Successful Investment Of Bribes: The Endgame In Lister V Stubbs

2015 ◽  
Author(s):  
Aiman Nariman Mohd Sulaiman ◽  
Mohsin Hingun
Keyword(s):  
Hong Kong ◽  
Supreme Court ◽  
Common Law ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Privy Council ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
Harsh Reality

For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the rule and show how the judges of the English courts were prepared to act on policy ground, in comity with other common law jurisdictions in upholding justice in a borderless world. Keywords: breach of Fiduciary duty; Accounts of profits; Proprietary interests; Recovery of pure profits.

PROPRIETARY REMEDIES FOR BREACH OF FIDUCIARY DUTY

2014 ◽  
Vol 73 (3) ◽  
pp. 490-493
Author(s):  
Matthew Conaglen
Keyword(s):  
Hong Kong ◽  
Informed Consent ◽  
Supreme Court ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trade Finance ◽  
The Supreme Court ◽  
English Law ◽  
Court Of Appeal

FHR bought a long lease for €211.5 million. Cedar Capital conducted the negotiations on FHR's behalf, but also received a €10 million commission from the vendor. On becoming aware of this commission, FHR sought to recover it from Cedar Capital. As its negotiating agent, Cedar Capital owed fiduciary duties to FHR, and had not obtained FHR's fully informed consent to the commission. Cedar Capital therefore had to account to FHR for the commission. However, applying the Court of Appeal's decision in Sinclair Investments (UK) Ltd. v Versailles Trade Finance Ltd. [2011] EWCA Civ 347, [2012] Ch. 453, Simon J. held that the remedy was purely personal; FHR could not assert a proprietary constructive trust over the €10 million: FHR European Ventures LLP v Mankarious [2011] EWHC 2999 (Ch). The Court of Appeal allowed an appeal as to remedy, distinguishing the facts from those in Sinclair v Versailles, but also casting some doubt on the correctness of that decision: [2013] EWCA Civ 17, [2014] Ch. 1. The Supreme Court was thus required to pass judgment on the voluminous debate as to whether English law should follow Lister & Co. v Stubbs (1890) 45 Ch.D. 1, or Attorney-General for Hong Kong v Reid [1994] 1 A.C. 324.

scholarly journals Les ordonnances de dédommagement et de restitution en droit pénal canadien

2005 ◽  
Vol 20 (3) ◽  
pp. 603-623
Author(s):  
Jacques Gagné
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Attorney General ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Victims Of Crime ◽  
Legislative Changes ◽  
Court Of Appeal ◽  
Limited Scope

This paper examines the constitutional law issue raised before the Supreme Court of Canada in the case of R. v. Anne Zelensky and the T. Eaton Co. Ltd. and the Attorney General of Canada, decided on May 1, 1978. Having discussed the judgment of the Manitoba Court of Appeal, the author proceeds to support the majority decision of the Supreme Court, as expressed by the Chief Justice, viz. that the provision for compensation orders in subsection 653(1) of the Criminal Code is intra vires the federal Parliament as part of the sentencing process. The paper then proceeds to draw a comparison between compensation orders under subsection 653(1) and probation orders under paragraph 663(2) e) of the same Code. Differences in the nature of these two classes of orders are brought out. In view of the limited scope for application of subsection 653(1) the author suggests a number of legislative changes. These changes would remove all the constitutional difficulties inherent in the present drafting of the subsection. They would also fashion a more efficient instrument for compensating victims of crime, while preserving the original purpose of rehabilitating the offender.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

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