scholarly journals Muslim personal law and the meaning of "law" in the South African and Indian constitutions

2017 ◽  
Vol 2 (2) ◽  
pp. 50
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Muslim Population ◽  
The Common ◽  
The Republic ◽  
Law And Legislation ◽  
Personal Law

The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.

scholarly journals Oral Law in Litigation in South Africa: An Evidential Nightmare?

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Court System ◽  
The Status ◽  
Customary Laws ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

Family Provision in South Africa

2020 ◽  
pp. 477-506
Author(s):  
Marius J de Waal
Keyword(s):  
South Africa ◽  
Seventeenth Century ◽  
South African ◽  
Common Law ◽  
The Other ◽  
Customary Law ◽  
Protection Measures ◽  
South Africans ◽  
The Common ◽  
Property Regime

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

scholarly journals The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Successful Implementation ◽  
The South ◽  
Legal Context ◽  
The Common ◽  
Law Of Succession ◽  
Statutory Regulation

In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has – and perhaps inevitably so – ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof.

scholarly journals Inheritance Rights for Posthumously Procreated Children: A Growing Challenge for the Law

2018 ◽  
Vol 21 ◽  
pp. 1-30
Author(s):  
Frederick Noel Zaal ◽  
Justin D'Almaine
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Artificial Reproduction ◽  
Cryogenic Technology ◽  
Laboratory Conditions ◽  
The Common ◽  
The Law ◽  
The Republic ◽  
Human Gametes

Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.

scholarly journals Some comments on the current (and future) status of Muslim personal law in South Africa

2017 ◽  
Vol 7 (2) ◽  
pp. 95
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Legal Order ◽  
Court Cases ◽  
State Law ◽  
Muslim Community ◽  
The South ◽  
The Common ◽  
Personal Law

The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts.The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunal and, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law. Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether we should opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated.

scholarly journals IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Michael C Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Common Law ◽  
Constitutional Court ◽  
High Court ◽  
Personality Rights ◽  
The Common ◽  
The Republic ◽  
Made In

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

scholarly journals A PERSPECTIVE ON THE DICHOTOMY OF ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY FATHERS IN TERMS OF THE CHILDREN’S ACT AND CUSTOMARY LAW

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Gugulethu Nkosi
Keyword(s):  
South African ◽  
Legal System ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Unmarried Fathers ◽  
Commission Report ◽  
The Common ◽  
State Of Affairs ◽  
Law Commission

South Africa’s legal system is pluralist in nature. It is embedded in two components, namely, customary law and the common law, which converge to form one national legal system through legislation and case law. However, the distinct development of these two components of the legal system has a significant impact on how their respective frameworks are perceived and subsequently applied in given cases. Traditional African family systems were regulated under the “banner” of customary law, but the validity of the system was ultimately decided in terms of the common law, subject to the repugnancy clause. The repugnancy clause was introduced during the colonial era and was used as a measure discarding certain indigenous African values as contrary to public policy and natural justice (see Juma “From ‘Repugnancy to Bill of Rights’: African Customary Law and Human Rights in Lesotho and South Africa” 2007 21 Speculum Juris 88). Hence, the common law was generally preferred to customary law. This state of affairs influenced the manner in which the two components of the legal system developed, entrenched an outlook of a subservient position towards African customary law particularly in relation to parental responsibilities and rights as asserted below. This position, in turn, rattles the traditional family value system of the indigenous African people.This state of affairs persists regardless of the fact that in the new constitutional dispensation, customary law has been afforded legitimate recognition. Section 211 (3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Furthermore, section 39(3) recognises the rights and freedoms “that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of Rights”.The official recognition of customary law necessitated that the application of the customary law and the common law within the same legal system be harmonised. Issues pertinent to the harmonisation of the common law and customary law were discussed in the South African Law Commission Report of 1999 (South African Law Commission Report “Harmonisation of the Common Law and the Indigenous Law: Report on Conflicts of Laws” Project 90 of 1999). One of the issues raised in the report was how to determine when the customary law is applicable (Himonga and Bosch “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning? 2000 117 South African LJ 314). It was found that generally, the judiciary exercises its own discretion to decide when to apply the customary law (South African Law Commission Report of 1999). A constant challenge that the judiciary faces is to ascertain the customary law position in a given case. This exercise generally requires probing of both the “official” and “living” versions of the customary law. Needless to say, an investigation of this nature is complex. Normally the traditional customary law position, that is, the living customary law of the pre-colonial is considered in light of its significance in the contemporary society. The diverse plethora of customs and cultures has further compounded the process of ascertaining a customary law position of the various indigenous African groups. Finally, it is essential that the judiciary consider the manner in which a group interprets and applies a particular custom. Due to the said complexities that prevail when attempting to ascertain the African customary law position, the attitude, then is generally to adopt the apparent African customary law position.In light of the said entrenched tensions between customary law and common law in terms of application, this note seeks to explore the dichotomy of the acquisition of parental responsibilities and rights as portrayed in legislation and in terms of customary law. Specific reference will be made to the legal position of unmarried fathers in this regard. This note investigates how parental responsibilities and rights are acquired as provided for in legislation. It further examines whether, in terms of customary law, unmarried fathers can acquire parental responsibilities and rights as stipulated in the legislation.

scholarly journals THE CONSTITUTIONAL ROLE OF THE JUDICIARY IN CASES OF SEXUAL GBV: AN ANALYSIS OF TSHABALALA v S; NTULI v S 2020 (5) SA 1 (CC)

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Glancina Mokone
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Common Law ◽  
The State ◽  
Customary Law ◽  
Bill Of Rights ◽  
Gender Based Violence ◽  
The Republic ◽  
Gender Based

The Constitution of the Republic of South Africa is the supreme law, and it imposes obligations on all arms of the State, including the judiciary. In performing their functions and exercising their powers, all three arms of the State are obliged to fulfil the obligations imposed by the Constitution. In particular, all three arms of the State are bound by the provisions of the Bill of Rights. The Bill of Rights, provided for in the Constitution, is a cornerstone of democracy in the country. The Bill of Rights provides for fundamental human rights, which must be respected, protected, promoted and fulfilled by the State. Different legal systems recognised in the Republic also have to comply with the provisions of the Bill of Rights. In particular, section 39(2) of the Constitution provides that whenever legislation is interpreted and when the common law and customary law are being developed, the spirit, purport and objects of the Bill of Rights must be promoted. Therefore, even when a case before a court calls for the application of common law and all the principles applicable under common law, such application must comply with the provisions of the Constitution, including in cases of common-law rape. Gender-based violence has reached alarming rates in South Africa. The country is referred to as the “femicide nation” and the “rape capital of the world”. With a Constitution that is supreme and entrenched, a Bill of Rights that provides for the protection and promotion of fundamental human rights, and obligations incurred in terms of international and African human-rights treaties, there are particular obligations placed on all three arms of the State, including the judiciary. All three arms of the State are obliged to comply with these provisions when addressing the scourge of gender-based violence in the country. This article conducts a critical analysis of the constitutional role of the judiciary in cases of sexual gender-based violence, with a focus on section 39(2) of the Constitution. The analysis is based primarily on the case of Tshabalala v S; Ntuli v S 2020 (5) SA 1 (CC).

scholarly journals The protection of environmental interests through corporate governance: A South African company law perspective

2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Corporate Governance ◽  
South African ◽  
Common Law ◽  
Company Law ◽  
The Common ◽  
Corporate Administrators ◽  
Environmental Interests

The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.

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