The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation

2019 ◽  
Vol 8 (2) ◽  
pp. 211-226
Author(s):  
Elmien Du Plessis
Keyword(s):  
Supreme Court ◽  
Land Reform ◽  
Market Value ◽  
Land Claims ◽  
The Past ◽  
Reform Legislation ◽  
The Supreme Court ◽  
Title Deed ◽  
History Of ◽  
Court Of Appeal

Abstract In 1998 Mr Msiza, a labour tenant, successfully instituted a claim in terms of land reform legislation (the Land Reform (Labour Tenant) Act) for ownership of the land that he and his father occupied for six decades. In terms of this legislation, when the labour tenant is awarding the land, the owner of the land must be compensated for the loss of the land. In 2004, the Land Claims Court confirmed the award of land and ordered the state to make sure that Mr Msiza gets a title deed for the land. The case was heard again in 2016 in the Land Claims Court, where the court this time examined the question of compensation to be paid to the owner. The Land Claims Court ruled that the Constitutional compensation requirement is “just and equitable” compensation, and awarded less-than-market-value compensation by subtracting a seemingly arbitrary amount from the market value of the land. This decision was overturned in 2017 when the Supreme Court of Appeal ruled that the the just and equitable question were already considered in the calculation of market value, and therefore ruled that no amount be deducted from what the valuers calculated to be market value. The handling of the case, and the different approaches from the two courts, is a symptom of the uncertainty that judges are confronted with when they have to calculate “just and equitable” compensation. A history of the case will reveal that the inability to properly valuate the land, perpetuated the injustice that Mr Msiza is facing, of not having the land registered in his name, despite a valid award in terms of land reform legislation. This paper will show how the compensation requirement is a hurdle to Mr Msiza receiving the title deed to his land. By making use of the valuation reports and the court materials, the paper will endeavour to indicate what a better outcome would be, by focussing on the calculation of “just and equitable” compensation. The paper will argue for a purposive approach when interpreting legislation dealing with compensation, where the Constitutional purpose to “heal the divisions of the past” should play a central role in land reform cases.

scholarly journals Collective proceedings in the Competition Appeal Tribunal: taking stock and looking ahead

2019 ◽  
Vol 18 (3) ◽  
pp. 104-115
Author(s):  
Ricky Versteeg ◽  
Alexandra Malina
Keyword(s):  
Supreme Court ◽  
Policy Implications ◽  
Collective Actions ◽  
Appellate Courts ◽  
The Past ◽  
The Supreme Court ◽  
Opportune Time ◽  
The Uk ◽  
Key Aspects ◽  
Court Of Appeal

A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.

scholarly journals Legal Theses of the Kraków Court of Appeal in 1940–1943

2021 ◽  
Vol 14 (1) ◽  
pp. 59-82
Author(s):  
Hubert Mielnik
Keyword(s):  
Supreme Court ◽  
Present Article ◽  
Legal Issues ◽  
Scientific Methods ◽  
Territorial Jurisdiction ◽  
The Supreme Court ◽  
General Government ◽  
History Of ◽  
History Of Law ◽  
Court Of Appeal

The German occupiers abolished the Supreme Court in the General Government. In the Polish (non-German) judiciary sector, there was no court of the highest instance to ensure the unification of jurisprudence. The competence to ensure the uniformity of jurisprudence and resolve existing doubts and legal issues was transferred to the courts of appeal. The objective of the present article was to demonstrate the procedure and practice of issuing legal theses by the Court of Appeal in Kraków. The article also presents changes in the composition of the judges and the territorial jurisdiction of the Kraków Court of Appeal. Archival sources constitute the source basis of the work. We also resorted to the latest subject literature. The work is based mainly on the analysis of archival sources and legal acts, so the scientific methods typical of the history of law were applied.

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.

scholarly journals Planting Seeds for the Future: Dissenting Judgments and the Bridge from the Past to the Present

Fundamina ◽  
2020 ◽  
pp. 91-127
Author(s):  
Clive Plasket
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Public Law ◽  
Public Power ◽  
The Past ◽  
The Supreme Court ◽  
The Face ◽  
Court Of Appeal ◽  
Democratic Constitution

The principal focus of this contribution concerns five cases involving questions of public law, namely the meaning of discrimination; the meaning of public power and its control; whether administrative actions may be reviewed for unreasonableness; the rights of prisoners; and the control of emergency powers in the face of an ouster clause. All five cases were decided in the Appellate Division of the Supreme Court of South Africa, now known as the Supreme Court of Appeal, and all were decided prior to 1994: in 1934, 1958, 1976, 1979 and 1988. In each, a dissenting judgment was delivered that articulated values that we today associate with our present democratic Constitution. Before dealing with those cases in detail, it is necessary to say something about the connection between the pre- and post-1994 law, and then to consider the role of some dissenting judgments in the development of the law.

scholarly journals Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

2018 ◽  
Author(s):  
Josh Chafetz
Keyword(s):  
Supreme Court ◽  
Bush Administration ◽  
The Other ◽  
Historical Narratives ◽  
Political Actors ◽  
Judicial Appointments ◽  
The Past ◽  
The Supreme Court ◽  
History Of ◽  
Usable Past

131 Harvard Law Review 96-132 (2017)Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness work in constitutional politics.Part I examines recent conflicts in judicial appointments, beginning in the George W. Bush administration and running through the 2017 elimination of the filibuster for all nominees. It focuses on the discourse surrounding these reforms, noting that at every turn, accusations of "unprecedented" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts — two precedential pathways — for recent events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some available pasts to others.

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.

Summary of Results

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Government Agencies ◽  
Property Law ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
The Past ◽  
The Supreme Court ◽  
The Government ◽  
Networked Economy

The persuasive force of the accepted account’s property logic has driven antitrust and intellectual property law jurisprudence for at least the past three decades. It has been through the theory of trademark ownership and the commercial strategy of branding that these laws led the courts to comprehend markets as fundamentally bifurcated—as operating according to discrete types of interbrand and intrabrand competition—a division that had an effect far beyond the confines of trademark law and resonates today in the way government agencies and courts evaluate the emerging challenges of the networked economy along the previously introduced distinction between intertype and intratype competition. While the government in its appeal to the Supreme Court in ...

Video as Text/Archive

2019 ◽  
pp. 778-797
Author(s):  
Bennett Capers
Keyword(s):  
Supreme Court ◽  
Court Case ◽  
The Supreme Court ◽  
Surveillance Cameras ◽  
American Law ◽  
Supreme Court Case ◽  
History Of ◽  
Constitutional Protections

This chapter focuses on a few issues related to video evidence and law, especially with respect to American law. The first issue is the history of the use of video evidence in court. The second issue involves constitutional protections regarding the state’s use of surveillance cameras. The chapter then turns to the Supreme Court case Scott v. Harris to raise concerns about the use of video evidence as not just proof but “truth.” These are of course just a sampling of the issues that the topic of video evidence could raise. The hope is that this chapter will spur further inquiry on the part of the reader.

Sign in / Sign up

Export Citation Format

Share Document