Family Formations in Contemporary South Africa: Does South African Marriage Law Protect Lived Realities?

2020 ◽  
Author(s):  
Fatima Osman
Keyword(s):  
South African ◽  
Ad Hoc ◽  
Nuclear Family ◽  
Case Law ◽  
Equal Treatment ◽  
Marriage Law ◽  
Legislative Framework ◽  
Opposite Sex ◽  
The Law ◽  
Do So

Abstract In the 21st century, families are constituted differently to the typical Western Judeo-Christian nuclear family comprising of a mother, father, and children. While some individuals may marry, others may choose not to do so or, at the other end of the spectrum, marry several individuals. This article critically examines whether South African marriage law adequately protects contemporary family formations. The examination reveals that unfortunately – but perhaps not unsurprisingly – the heteronormative nuclear family continues to be positioned as the baseline for the conferral of rights with opposite-sex civil marriages often receiving the greatest protection in South African law. Despite the legislative recognition of civil unions and customary marriages, the realisation of rights by individuals in these fringe groups is hindered by the creation of a complex legislative framework and practical difficulties encountered in the implementation of the law. Furthermore, notwithstanding years of legislative deliberation on the matter, unmarried partners and those in religious marriages enjoy only ad hoc protection through case law and piecemeal legislative provisions. While judicial activism in this arena may be lauded, the limited nature of judgments has led to continuous litigation for the realisation of rights. Statutory reform is thus required to ensure the equal treatment of all marriages, reconcile and simplify existing statutory law, address practical difficulties in the implementation of the law, and govern social reality.

Inequality, Victimhood, and Redress

2020 ◽  
Author(s):  
Rita Kesselring
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
South African ◽  
Human Life ◽  
Social Groups ◽  
Case Law ◽  
Federal Courts ◽  
Legal Norms ◽  
The Law ◽  
Do So

In relation to inequality, the law is ambivalent. Legal norms can be used to create or formalize differences in a society, but social groups can also use legal norms in their attempts to attenuate inequality. This contribution differentiates three ways in which law can affect structures of inequality: legislation, case law, and law enforcement, and law’s discursive forms and legal practices. It focuses on the latter, or what Bourdieu calls ‘the force of law’, at the level of lived reality. To do so, it examines the apartheid litigations where South African victims of human rights violations turned to U.S. federal courts to seek redress, and shows how, in that pursuit, new forms of inequalities were produced. As the law needs to valuate life, the evaluation of human life poses the danger of producing new disparities. Recourse to the law can, however, also be emancipatory for the injured. Both effects—emancipation from and cementation of inequalities—have societal rather than mere technical causes.

Democracy as Public Law: The Case of Constitutional Rights

2013 ◽  
Vol 14 (8) ◽  
pp. 1017-1037 ◽  
Author(s):  
Richard Bellamy
Keyword(s):  
Ad Hoc ◽  
State Power ◽  
Public Law ◽  
Constitutional Rights ◽  
Public Power ◽  
The Public ◽  
Public Behavior ◽  
The Law ◽  
Over Time ◽  
Do So

The distinctive domain and character of public law have become—and in certain respects always were—unclear and, to a degree, contested. As a result, any definition is likely to be to some extent stipulative. For my purposes, I want to refer to public law in two broad and related senses—as applying to a certain kind of body and its functions, and as requiring a certain kind of justification. The first sense refers to the actions of the state and its administration. Of course, it will be pointed out that these are increasingly performed by private bodies and often involve legal activities that have been associated with private parties and doctrines, such as procurement and contract. Nevertheless, government and the administrative apparatus more generally can still be considered as possessing distinctively broad, authoritative, and coercive powers which in various ways make their subjection to the law both problematic and pressing: Problematic in that they play a central role in the making and enforcement of the law, pressing in that this role renders them more powerful than other bodies. The second sense enters here. For the justification of state power has come to rest on its serving the public ends of the ruled rather than private ends of the rulers, and certain public qualities of law have been thought to oblige those who wield state power to do so in a publically justified and justifiable way. Ruling through laws has been viewed as different from rule by willful, ad hoc commands because laws have certain characteristics that render them capable of coordinating and shaping public behavior in consistent and coherent ways over time, while ruling under the law likewise forces rulers to adopt public processes and offers an additional incentive to devise laws that treat rulers and ruled equitably. Again, these matters are far from straightforward. How far laws need to, or even can, always possess the requisite qualities and the degree to which these do constrain power holders are matters of dispute. Yet, that all law has to have some public qualities—for example, that it be promulgated and capable of being followed in ways that make it publicly recognized as law—and that these features formalize power to a degree, is reasonably undisputed. Increasingly, though, and even more controversially, many jurists have wanted to suggest that legality also involves certain substantive qualities of a public kind—that laws must appeal to public reasons that all subject to them can accept as reflecting, or being compatible with certain basic interests or values that are equally shared by all. Such arguments have come to be identified with rights and in particular constitutional rights, which are deemed to set the terms of how and to what purpose political power may be legally exercised. In this way, the two senses of public law come together. Constitutional rights define and mark the limits of public power in ways that can be publicly justified, and thereby ensure it serves public ends. They thereby serve what Martin Loughlin calls the “basic tasks of public law;” namely, “the constitution, maintenance and regulation of governmental authority.”

5. Separation and Nullity

Family Law ◽  
2020 ◽  
pp. 39-44
Author(s):  
Roiya Hodgson
Keyword(s):  
Case Law ◽  
Civil Partnership ◽  
Opposite Sex ◽  
The Law

This chapter considers some parts of the law and procedure following the breakdown of a relationship. It discusses the remedy of separation as an alternative to divorce proceedings. It explains the term ‘separation’ and the two main statutes relating to these areas. The chapter also discusses the bars to petition and also examines nullity as a remedy, including void and voidable marriages and the different grounds for finding a marriage void or voidable. It looks at nullity and civil partnerships, as well as a remedy for escaping forced marriages and some statistics on forced marriages. The Civil Partnership (Opposite-sex Couples) Regulations 2019 (SI 2019/1458) are mentioned. Case law is also used.

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.

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.

South African Legal Materials *

1981 ◽  
Vol 9 (2) ◽  
pp. 55-59
Author(s):  
H. C. Hadassin ◽  
L. J. Davis
Keyword(s):  
South African ◽  
Legal System ◽  
Secondary Sources ◽  
The Law ◽  
Do So

Since all users of law libraries do so in a search for authority, the basic categories of materials are found in all law libraries. The authority may be binding or persuasive. The nature of our legal system is reflected by South African legal publications. Primary and secondary sources of the law constitute the two main groups of South African legal publications.

The ictr and Its Contribution to the Revivification of International Criminal Law

2020 ◽  
Vol 22 (1-4) ◽  
pp. 231-246
Author(s):  
Emily Crawford
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Armed Conflict ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Legal Responses ◽  
The Law

In this article, Emily Crawford explores one set of key institutional and legal responses to, and consequences of, the Rwanda genocide – the ictr and the revival of icl that the ictr and the icty heralded. Tracing the development of the concept and institutions of icl, Crawford observes how the case law of the [ad hoc] tribunals, and the ictr in particular, were pivotal in progressively developing the international law of genocide, and the law of non-international armed conflict’.

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

2021 ◽  
Vol 33 (2) ◽  
pp. 238-259
Author(s):  
Chuks Okpaluba ◽  
Tumo Charles Maloka
Keyword(s):  
South African ◽  
Case Law ◽  
Rugby Union ◽  
Department Of Education ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
The Law ◽  
Bear Witness

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

14. Procedural Grounds of Judicial Review

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Procedural Fairness ◽  
Case Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Partial Picture ◽  
The Law ◽  
Modern Era ◽  
Do So

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.

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