scholarly journals ‘The Court of Appeal  …  Appears to Have Overlooked the Limitations to its Competence, Both Institutional and Constitutional, to Decide Questions of National Security’: Shamima Begum, the Supreme Court and the Relationship Between the Judiciary and the Executive

2021 ◽  
pp. 1-12
Author(s):  
Chris Monaghan
Keyword(s):  
Supreme Court ◽  
National Security ◽  
The Supreme Court ◽  
The Relationship ◽  
Court Of Appeal

Equity & Trusts Law Directions

2021 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Council Decision ◽  
Key Points ◽  
The Supreme Court ◽  
Farming Families ◽  
The Relationship ◽  
Court Of Appeal

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This book explains the key topics covered on equity and trusts courses. The content of the text is designed to emphasise the relationship between equity, trusts, property, contract and restitution to enable students to map out conceptual connections between related legal ideas. There is also a focus on modern cases in the commercial sphere to reflect the constantly changing and socially significant role of trusts and equity. The book starts by introducing equity and trusts. It then includes a chapter on understanding trusts, and moves on to consider capacity and formality requirements, certainty requirements and the constitution of trusts. Various types of trusts are then examined such as purpose, charitable, and variation trusts. The book then describes issues related to trusteeship. Breach of trust is explained, as is informal trusts of land. There is a chapter on tracing, and then the book concludes by looking at equitable liability of strangers to trust and equitable doctrines and remedies. This new edition includes coverage of significant recent cases, including the Supreme Court decision on interest to be paid by tax authorities on monies owed; the Supreme Court decision on the test of dishonesty applicable to civil matters; the Privy Council decision on the division of investment property acquired by cohabitants; the Court of Appeal decisions on Quistclose trusts; fiduciary duties in arms-length contracts; transactions prejudicing creditors; beneficiary anonymity in variation of trust cases; exemption clauses; discretion exercised beyond trustee’s authority; implications of GDPR for trustee disclosures; trustee personal liability; causation and equitable compensation; statutory relief for a professional trustee’s breach of trust; use of proprietary estoppel to reward work undertaken in farming families; costs of seeking court’s directions; injunctions ordered against persons unknown; equitable jurisdiction to rectify agreements.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

scholarly journals 4 The Jurisdiction of the Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
The Supreme Court ◽  
History Of ◽  
The Impact ◽  
The Relationship ◽  
Court Of Appeal

This chapter focuses on explaining the kinds of cases which Ireland’s Supreme Court is authorised to deal with and how it has had very little choice over which cases are brought to it. It analyses relevant legislative provisions, some of which date back to 1924. The relationship between the Supreme Court and the Court of Criminal Appeal is covered, as are the reasons for the rise in the Supreme Court’s workload since the 1990s. The history of reform proposals is set out and the impact of the new Court of Appeal is considered. The chapter also examines the point that pre-1922 legislation is presumed to continue to apply in Ireland unless Parliament has changed it and shows how the Supreme Court has been careful to ensure that people other than judges do not exercise what is in effect a judicial function. The ‘non-justiciable’ principle is also considered.

Part III The Relationship Between the Judiciary and the Political Branches, 10 Judicial–Executive Relations in Nigeria’s Constitutional Development: Clear Patterns or Confusing Signals?

2016 ◽  
Author(s):  
Guobadia Ameze
Keyword(s):  
Supreme Court ◽  
Military Coup ◽  
The Political ◽  
Constitutional Development ◽  
The Supreme Court ◽  
The Face ◽  
History Of ◽  
The Relationship ◽  
Court Of Appeal

This chapter examines the relationship between the executive and the judiciary in Nigeria. It sketches the history of assertions of judicial power by Nigerian courts, including the 1966 action by the Supreme Court to assert the continued validity of the 1963 constitution in the face of a military coup. It considers the role of the National Judicial Council in appointing and disciplining judges, an important issue in many systems. It recounts the saga surrounding President of the Court of Appeal Justice Salami, which raises the troubling prospect of the Chief Justice ‘packing’ the Council and possibly colluding with the executive to pursue political goals and discusses the issue of disputes over the appointment of state chief justices, who are appointed by governors on the Council’s recommendation. It also offers the Nigerian perspective on control over judicial budgets and administration, before concluding with a review of some significant cases.

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 Insurance related problems in bareboat charter agreements

2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Albano Gilabert Gascón
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Third Parties ◽  
Insurance Contract ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The One ◽  
The Baltic ◽  
The Relationship

AbstractIn 2017, the majority of the United Kingdom Supreme Court held in its judgment in the Gard Marine and Energy v China National Chartering (The Ocean Victory) case that, in bareboat charters under the ‘BARECON 89’ form, if both the owner and the charterer are jointly insured under a hull policy, the damages caused to the vessel by the charterer cannot be claimed by the insurer by way of subrogation after indemnifying the owner. The interpretation of the charter party leads to the conclusion that the liability between the parties is excluded. Faced with the Supreme Court’s decision, the Baltic and International Maritime Council (BIMCO) adopted a new standard bareboat charter agreement only a few months later, the ‘BARECON 2017’ form, which amends, among other clauses, the one related to insurance. The present paper analyses (i) the new wording of the clause mentioned above and (ii) its incidence on the relationship between the parties of both the charter agreement and the insurance contract and its consequences for possible third parties. Despite BIMCO’s attempt to change the solution adopted by the Supreme Court and his willingness to allow the insurer to claim in subrogation against the person who causes the loss, the consequences, as it will be seen, do not differ much in practice when the wrongdoer is the co-insured charterer. On the contrary, when the loss is caused by a time charter or a sub-charter, in principle, there will be no impediment for the insurer to sue him.

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”.

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.

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