Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

scholarly journals Unpacking the Law and Practice Relating to Parole in South Africa

2017 ◽  
Vol 14 (5) ◽  
pp. 204
Author(s):  
Jamil D Mujuz
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Early Release ◽  
Correctional Services ◽  
The Law ◽  
Parole System

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.

Protection of shareholders class rights in company law

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Anthony Nwafor
Keyword(s):  
South African ◽  
Case Law ◽  
Company Law ◽  
The South ◽  
Content Type ◽  
The Law ◽  
The Uk ◽  
Class Rights ◽  
A Company ◽  
Business Challenges

Purpose A company that is registered with share capital may issue different classes of shares and may confer rights on members, which place them in different classes in the company’s organisational structure. This paper is concerned with the propensity for encroachment on such vested class rights as companies strive to wriggle out of business challenges spawn by the COVID-19 pandemic. The purpose of this study is to ascertain the extent of protection that the law accords to the different classes of shareholders and members in a company especially when the company seeks to vary the vested class rights. Design/methodology/approach A doctrinal methodology, which relies on existing literature, case law and statutory instruments, is adopted to explore the nature of class rights and the adequacies of the remedial measures availed by statute to the aggrieved bearers of class rights in the context of the South African Companies Act 71 of 2008 with inferences drawn from the UK companies statute and case law. Findings The findings indicate that accessing the remedies available to aggrieved shareholders under the relevant statutory provisions are fraught with conditionality, which could make them elusive to those who may seek to rely on such provisions to vindicate any encroachment on their class rights. Practical implications The paper embodies cogent information on the interpretation and application of the relevant statutory provisions geared at the protection of shareholders class rights, which should serve as guides to companies and the courts in dealing with matters that affect the vested class rights of shareholders and members of a company. Originality/value The paper shows that protections offered to classes of shareholders under the law can also be extended to classes of members who are not necessarily shareholders, and that shareholders who seek to vindicate their class rights may conveniently rely on Section 163 that provides for unfair prejudice remedy to avoid the onerous conditions under Section 164 of the South African Companies Act 71 of 2008, which directly deals with class rights.

MODERN FREEDOM OF TESTATION IN SOUTH AFRICA: ITS APPLICATION BY THE COURTS

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Patrick Matsemela
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Bill Of Rights ◽  
The South ◽  
Central Thesis ◽  
Locus Standi ◽  
Statutory Law ◽  
The Law

Freedom of testation is considered to be one of the founding principles of the South African law of testate succession. Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit. As a result, effect must be given to the expressed wishes of the testator. Prior to 1994, such freedom could be limited only by common law or statutory law; more recently, such freedom has been tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or is deemed to be unconstitutional.Having regard to the unfair discrimination provisions of section 9(3) of the Final Constitution, can a court enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability? Will such clause pass the test of constitutionality, be justified or considered to achieve a legitimate objective? Can potential beneficiaries or anyone who has locus standi challenge the freedom of testation by relying on the freedoms and rights entrenched in the Bill of Rights? It is against this background that the paper attempts to answer these questions and explore the extent to which the Constitution has an impact on freedom of testation. The central thesis of the article is to determine whether clauses in wills or trust instruments which differentiate between different classes of beneficiary can be deemed to be valid. This is done by looking at several more recent cases that have appeared before our courts.

“The Terrible Genius of Literature”: Reassessing Reconciliation in Nadine Gordimer’s The House Gun

2015 ◽  
Vol 14 (1) ◽  
pp. 100-120 ◽  
Author(s):  
Audrey J. Golden
Keyword(s):  
South African ◽  
Case Law ◽  
Law And Literature ◽  
Truth And Reconciliation Commission ◽  
Constitutional Court ◽  
The Novel ◽  
The South ◽  
Reconciliation Commission ◽  
Truth And Reconciliation ◽  
The Law

During the three years in which Gordimer drafted The House Gun (1998), she relied heavily on South African case law, international jurisprudence, and the discerning editorial eye of Nelson Mandela’s lawyer, George Bizos. As such, my reading of The House Gun brings new attention to the novel’s engagement with the reconciliatory efforts of the Truth and Reconciliation Commission and the juridical work of the South African Constitutional Court to redefine the terms of reconciliation in the country. Through language in a fictional courtroom, Gordimer’s novel turns the process of repair into one that is always immediate and ongoing. It shifts the primarily retributive focus of the law into a reparative and open-ended endeavor. Justice no longer is something that “is done,” Gordimer explains, but rather is a process equally conceived by law and literature. The novel depicts harm in terms of the interpersonal, spatial, and legal fractures it creates. In this way, it expresses reconciliation in the Commission’s language of bridging an injurious past with a present always open to healing.

Sexual Harassment: The South African Perspective

2005 ◽  
Vol 7 (1-4) ◽  
pp. 229-251
Author(s):  
Sandra Govender
Keyword(s):  
South Africa ◽  
Sexual Harassment ◽  
South African ◽  
Crucial Role ◽  
The South ◽  
Positive Duty ◽  
African Perspective ◽  
The Creation ◽  
The Law

Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication. Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one. The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.

scholarly journals SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART TWO

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Stephen Allister Peté ◽  
Sarah Pudifin
Keyword(s):  
South Africa ◽  
South African ◽  
Public Art ◽  
Public Works ◽  
Moral Rights ◽  
Legal Rights ◽  
The South ◽  
Works Of Art ◽  
The Law ◽  
Public Bodies

As pointed out in part one of this article, politics, art and the law make uncomfortable bedfellows, and the commissioning of public art by public bodies often gives rise to bitter controversy. Part one traced a recent ongoing public spat in the Durban area concerning a sculpture of three large elephants by the acclaimed international artist, Andries Botha. Using that case as a lens, part one attempted to situate the central issues surrounding the commissioning of public art by public bodies in post-apartheid South Africa within a broad historical, political and constitutional framework. Part two of this article examines certain of the more specific and salient legal issues which the authors believe South African courts dealing with matters of this kind will need to address. The possible legal rights of both the South African public when confronted with undue state interference in matters of public art, as well as those of individual artists involved in such matters, are discussed. In relation to the rights of the South African public, the constitutionality of the commissioning process itself (that is, potential constitutional constraint on the actions of public officials who commission public works of art), as well as the potential right of the general public to the preservation of works of art of “recognized stature”, is discussed. As for the rights ofindividual South African artists, a number of areas of the law – constitutional, contractual and statutory – as possible sources for such rights are examined. In particular, the “moral rights” of South African artists, protected in terms of statute, are analysed and discussed in detail. The authors conclude that the funding and commissioning of public art by public bodies in South Africa should be arms-length, and that artists should be maximally free to determine the content of their creative expression. Furthermore, public art should be as diverse as possible within South Africa’s constitutional democracy, reflective of the beautiful diversity of the country’s people. Direct political interference in matters of public art should be strenuously avoided.

scholarly journals Mining Community Development in South Africa: A Critical Consideration of How the Law and Development Approach the Concept “Community”

2019 ◽  
Vol 12 (2) ◽  
pp. 561-593
Author(s):  
Anri Heyns
Keyword(s):  
South Africa ◽  
Community Development ◽  
South African ◽  
Mining Industry ◽  
The South ◽  
Conceptual Approach ◽  
Mining Communities ◽  
Mining Companies ◽  
The Law ◽  
Development Approach

Abstract The legislative system that provides for the socio-economic development of mining communities in South Africa has been under significant scrutiny in recent times. Various instances of conflict between mining communities and mining companies, of which the Marikana Massacre of 2012 is certainly the most noteworthy, show that mining communities expect mining companies to contribute more to the improvement of their living conditions. The relationship between mining communities and mining companies are exposed to the various socio-economic challenges that other sectors of the South African economy currently face. However, considering the legislative system in the mining industry specifically and in terms of a conceptual approach may show to the unique challenges the industry faces when it comes to mine community development. A conceptual approach requires asking whether the way in which the legislative system is framed and the rhetoric it promotes do not create expectations with mining communities that cannot be met by mining companies, because mining communities are not accurately depicted in the legislative system. The legislative system promotes “mine community development” by means of a complex interaction between various pieces of legislation and policy guidelines. At the centre of this interaction are the definitions of “community” and “mine community”. These definitions have been amended quite a few times since the enactment of the legislative system, attesting to the difficulty for the law to capture “community”. The latest iterations of the definitions are criticised for their ambiguity, causing uncertainty as to who should benefit from mine community development. This paper proposes that there is a conceptual problem when catering for communities, and not individuals, in a development paradigm, posing challenges for accurately defining “community”. It is not argued that community development should not be promoted, but a possible reason for why mine community development is not successful is proposed. The South African mining legislative system will be considered in parallel with relevant international legal instruments.

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