Ten Years of the Botswana Matrimonial Causes Act—Further Proposals for Divorce Reform

1982 ◽  
Vol 26 (2) ◽  
pp. 163-176
Author(s):  
A. J. G. M. Sanders
Keyword(s):  
Property Rights ◽  
Subject Matter ◽  
Frame Of Reference ◽  
Customary Law ◽  
National Assembly ◽  
High Court ◽  
The Subject ◽  
Court Of Appeal

The Matrimonial Causes Act, 1 of 1973 (Cap. 29:07 of the Laws of Botswana) was passed by the National Assembly on 27 October, 1972. It was assented to by the then President of Botswana, the late Sir Seretse Khama, on 2 February, 1973, and entered into force a week later on 9 February, 1973. The Act applies to civil marriages only, i.e. marriages concluded in terms of the Marriage Act (Cap. 29:01); customary law marriages have been excluded from its operation. As its short title indicates, the Act deals with matrimonial causes, that is to say divorce, judicial separation and the annulment of marriages and matters incidental thereto such as the property rights of spouses, custody, guardianship, maintenance and the jurisdiction of the courts.During its first 10 years of existence the Act has been the subject-matter of many a decision of the High Court and provisions of it have been considered also by the Court of Appeal. Most of these decisions deal with divorce. In academic circles, too, the Act received attention, witness the review by Chris Himsworth in theJournal of African Law. This review was written immediately after the Act came into force. An updated account is therefore appropriate. As I intend to approach the Act from a broader historical and jurisprudential angle, I will deal with it afresh rather than use Himsworth's penetrating but positivistic analysis as a frame of reference.

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.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Capacity to Stand Trial: Pitfalls of Legal Interpretation

1994 ◽  
Vol 39 (2) ◽  
pp. 113-115 ◽  
Author(s):  
David M., Greenberg
Keyword(s):  
Functional Capacity ◽  
Subject Matter ◽  
Criminal Code ◽  
Best Interests ◽  
Psychotic Symptoms ◽  
Legal Interpretation ◽  
Fitness To Stand Trial ◽  
The Subject ◽  
Court Of Appeal

Legally, the concept of fitness to stand trial is fixed and absolute. Psychiatrists view fitness as a homeostatic functional capacity. The Ontario Court of Appeal recently set a precedent (Queen versus Taylor) for a standard of fitness to stand trial by interpreting the criteria for unfitness as defined in terms of Section 2 of the Criminal Code. They held that only a factual understanding of these criteria is required by the courts. A person suffering from acute psychotic symptoms with delusions which relate to the subject matter of the trial, who act contrary to their best interests and who are disruptive in their behaviour to the orderly flow of the trial may still fulfill the criteria for fitness to stand trial. The writer illustrates some important implications of this decision and suggests recommendations to current legal interpretations of a clinical capacity.

scholarly journals KAJIAN PERBANDINGAN DALAM PEMBAGIAN WARIS BERDASARKAN PADA HUKUM ISLAM DAN HUKUM ADAT

2018 ◽  
Vol 3 (1) ◽  
Author(s):  
Anwar Hidayat ◽  
M. Gary Gagarin Akbar ◽  
Deny Guntara
Keyword(s):  
Property Rights ◽  
Research Method ◽  
Islamic Law ◽  
Customary Law ◽  
Inheritance Law ◽  
Hereditary System ◽  
The Family ◽  
The Status ◽  
Approach Method ◽  
The Subject

Abstrak Pemberlakuan aturan mengenai kewarisan di Indonesia selama ini terjadi perdebatan antara para ahli hukum tentang status hukum Islam dan hukum adat.Berkaitan dengan permasalahan dalam hukum waris pada hukum Islam dan hukum Adat, maka perlu adanya kesesuaian bagi masyarakat yang akan mempergunakan masing-masing hukum tersebut dalam menyelesaian warisannya kepada sang ahli waris yang berhak. Ketentuan hukum Islam di Indonesia belum merupakan undang-undang (kodifikasi) haruslah sistematis dan prosedural, harus jelas siapa subyek dan obyeknya dan diundangkan oleh lembaga yang berwenang dalam negara. Rumusan masalah dalam penelitian ini adalah bagaimana perbandingan dalam pembagian waris berdasarkan pada hukum islam dan hukum adat. Metode penelitian ini menggunakan metode kualitatif dengan metode pendekatan yuridis empiris. Hasil penelitian yaitu Hukum waris Islam telah menempatkan atauran kewarisan dan hukum mengenai harta benda dengan sebaik-baiknya dan seadil-adilnya. Islam menetapkan hak milik seseorang atas harta, baik bagi laki-laki maupun perempuan seperti perpindahan hak milik dan perempuan pada waktu masih hidup atau perpindahan harta kepada ahli warisnya setelah ia meninggal dunia. Hukum waris adat berpangkal dari bentuk masyarakat dan sifat kekeluargaan yang terdapat di Indonesia menurut sistem keturunan, dan setiap sistem keturunan yang ada mempunyai kekhususan dalam hukum waris yang satu dengan yang lain berbeda-beda. Kata Kunci:Waris, Hukum Islam, Hukum Adat Abstract The enactment of the rules regarding inheritance in Indonesia has been a debate between legal experts about the status of Islamic law and customary law. In connection with problems in inheritance law in Islamic law and Customary law, it is necessary for the community to use each of these laws in complete the inheritance to the rightful heirs. The provisions of Islamic law in Indonesia are not yet laws (codification) must be systematic and procedural, it must be clear who the subject and object are and are promulgated by the authorized institutions in the country. The formulation of the problem in this study is how comparisons in inheritance distribution are based on Islamic law and customary law. This research method uses qualitative methods with an empirical juridical approach method. The results of the research, namely Islamic inheritance law has placed the inheritance and law regarding property as well as possible and as fair as fair. Islam establishes someone's property rights, both for men and women, such as the transfer of property rights and women while still alive or the transfer of property to his heirs after he dies. The customary inheritance law stems from the form of the community and the family character found in Indonesia according to the hereditary system, and each of the offspring systems that have specific inheritance laws is different from one another Keyword: Inheritance, Islamic Law, Customary Law

Paris Embraces Modern Art – But Not in Court: Opinion on the Cour d’Appel de Paris Decision – Jeff Koons v Franck Davidovici

2021 ◽  
Author(s):  
Moritz Sutterer
Keyword(s):  
Subject Matter ◽  
Modern Art ◽  
Applicable Law ◽  
Traditional Notion ◽  
The Us ◽  
Exceptions And Limitations ◽  
The Subject ◽  
First Time ◽  
Jeff Koons ◽  
Court Of Appeal

Abstract In February 2021 the Paris Court of Appeal (Cour d’appel de Paris) rendered a decision against the US artist Jeff Koons, holding that he had infringed copyright relating to an advertisement photography that was more than 30 years old. Jeff Koons is famous for his Neo-pop Appropriation art – kitsch for some, a provocative breach with the traditional notion of art for others. It was not the first time Koons has had to defend his work in court. The French decision is particularly interesting, however, as it shows a very narrow understanding of the copyright exceptions. It is an illustrative example of the issues resulting from CJEU’s approach in Pelham, Spiegel Online and Funke Medien, where the Court held that once the recognisability of original elements has been established, the only way out of the infringement leads through the formal exceptions and limitations of the InfoSoc Directive. Based on the decision, I will reflect on the openness of copyright for art-specific forms of referencing and in particular analyse the subject matter and scope of the parody exception and contrast it with less formal approaches to consider new creative elements. I will also analyse the question of applicable law in internet cases.

Ch.3 International Exhaustion of Rights

2020 ◽  
Author(s):  
Correa Carlos Maria
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Subject Matter ◽  
Dispute Settlement ◽  
Foreign Market ◽  
Trips Agreement ◽  
Parallel Imports ◽  
The Subject ◽  
Domestic Law

This chapter focuses on the issue of exhaustion of rights. Article 6 disclaims any intent in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement to limit the Members’ freedom to regulate the issue of exhaustion of rights with regard to all types of intellectual property rights (IPRs). It declares the admissibility of the international exhaustion of rights, that is, the possibility of legally importing into a country a product protected by intellectual property rights, after the product has been legitimately put on the market in a foreign market. These imports—made by a party without the authorization of the title-holder but equally legal—are generally known as ‘parallel imports’. Moreover, Article 6 of the TRIPS Agreement has left Member countries freedom to incorporate the principle of exhaustion of rights into their domestic law with a national, regional, or international reach. The issue as such cannot be the subject matter of a dispute settlement under the Agreement.

Part III Jurisdiction, Foreign Judgments and Awards, 14 Limitations on Jurisdiction

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Subject Matter ◽  
The Subject

This chapter discusses the limitations of the English courts' jurisdiction under the traditional rules. It first considers three types of limitations: limitations that affect the subject matter of the issue, limitations that affect the kind of relief sought, and limitations relating to persons between whom the issue is joined. It also explains limitations on jurisdiction imposed by certain statutes before addressing jurisdiction in respect of foreign property such as foreign immovables and intellectual property rights. Furthermore, it describes jurisdiction over the parties, focusing on persons who cannot invoke the jurisdiction and those who may claim exemption from the jurisdiction. The chapter concludes with an overview of statutory limitations on jurisdiction.

Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts

1978 ◽  
Vol 9 (3) ◽  
pp. 348-374
Author(s):  
Christopher D. Gilbert
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
State Courts ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
Federal Constitutional ◽  
Recent Statement ◽  
The Subject

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court's recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr Justice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.

scholarly journals THE EXTENT OF THE APPLICABILITY OF THE PRINCIPLE OF FAIR HEARING IN ADMINISTRATIVE ADJUDICATION IN NIGERIA

2019 ◽  
Author(s):  
Reginald Anosike Uzoechi
Keyword(s):  
Human Rights ◽  
Subject Matter ◽  
Administrative Law ◽  
Human Rights Law ◽  
National Assembly ◽  
Secondary Sources ◽  
The Subject ◽  
Fair Hearing ◽  
Law Reports ◽  
Administrative Adjudication

This paper considers and examines the extent of the applicability of the principles of fair hearing in administrative adjudication in Nigeria. The paper holds the view that administrative adjudicatory bodies are compulsorily bound by the principles of fair hearing as most of their functions affect the rights and obligations of individuals appearing before them. Bearing in mind that these principles of fair hearing (and others ancillary to them) are however not straight jacket principles, hence this paper. In achieving this purpose, the paper adopts the thematic and doctrinal methods of research. The paper adopts the analytical, critical, expository and comparative methods of presentation, with copious reference to the 1999 Constitution of the Federal Republic of Nigeria; Textbooks on Constitutional and Administrative Law and Human Rights Law; Statute books; Law Reports (Case Laws); National Assembly Gazettes, Local and International Journals as primary and secondary sources of material on the subject-matter.

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