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.

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.

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”.

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.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

Regspraak: Novasie en delegasie van skuld – hoe raak dit die versekering van die tersake skuld?

2021 ◽  
Vol 2021 (2) ◽  
pp. 356-378
Author(s):  
JC Sonnekus ◽  
EC Schlemmer
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Secured Debt ◽  
Personal Rights ◽  
The Supreme Court ◽  
Preferential Position ◽  
The Creation ◽  
D 20 ◽  
Court Of Appeal ◽  
Secured Creditors

Personal rights may be transferred by means of cession, and, in such an instance, the cedent (creditor) does not need the debtor’s permission, but once the debtor has been informed, the debt is redeemed only if he performs against the cessionary. If however, someone owes a debt, he (the debtor) can free himself of the obligation only if he redeems the debt, if he is released, or through the running of prescription. But sometimes it might be necessary that a restructuring of someone’s debts takes place or the debtor may want to be replaced with someone else who is willing to take over his obligation. This can be done only with the cooperation and agreement of the creditor. In such a case the debtor delegates his obligation to another person, who then becomes the new debtor of a new debt – the creditor relinquishes his right against the old debtor and accepts the new debtor and the new debt. The old debt no longer exists. It is also possible to rearrange the debt and create a new obligation which extinguishes the old debt – a novation takes place. This contribution starts with a discussion of these general principles and particularly the role that they (should) play when one is dealing with a secured debt which the debtor wants to delegate or when novation comes into play. This leads into a discussion of Wilke NO v Griekwaland Wes Korporatief Ltd (1327/2019) 2020 ZASCA 182 (23 Dec 2020) and the judgments in the earlier courts in which the supreme court of appeal and the other courts did not consider the implications of delegation and novation on an underlying debt when that debt was secured. Delegation and novation extinguish the underlying debt and any security right fortifying that debt is thereby also extinguished because of the principle of accessority. If the creditor requires the new debt to be secured, a new security right needs to be established by meeting all the requirements for the establishment of such security whether it is a right of suretyship or a real security right. A creditor must carefully consider agreeing to a delegation or novation of a secured debt since the implication is that he loses his secured and preferential position, and, even with the creation of a new security right, he loses the ranking he initially held in the line of secured creditors when a right of mortgage, for example, is at stake – qui prior est tempore potior est iure (D 20 4 11pr).

EXPRESSIVE MEANING, RACE, AND THE LAW:

Legal Theory ◽  
1999 ◽  
Vol 5 (1) ◽  
pp. 75-99
Author(s):  
Andrew Altman
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Court Cases ◽  
The Supreme Court ◽  
Expressive Meaning ◽  
The Law

Recently, legal and social thinkers have turned to the idea that actions possess a nonlinguistic meaning, called “expressive meaning.” In this article I examine the idea of expressive meaning and its role in legal reasoning. My focus is on a series of U.S. Supreme Court cases involving constitutional challenges to election districts drawn on the basis of race. The Supreme Court used the idea of expressive meaning in striking down the districts. After explicating the idea of expressive meaning, I explain and criticize the Court’s reasoning. I distinguish the approach of Justices Thomas and Scalia, who hold that all uses of race in districting do constitutional harm, from that of Justice O’Connor, who distinguishes uses of race that do constitutional harm from those that do not. I contend that Justice O’Connor is right to make the distinction but she draws the line using a questionable standard. A more defensible standard would be more accommodating to the districts that the Court invalidated.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

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