scholarly journals The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)

2017 ◽  
Vol 12 (3) ◽  
pp. 135
Author(s):  
B Mmusinyane
Keyword(s):  
South African ◽  
Cultural Practices ◽  
Customary Law ◽  
Constitutional Court ◽  
South Africans ◽  
The Supreme Court ◽  
Customary Laws ◽  
The Republic ◽  
Traditional Authorities ◽  
Court Of Appeal

South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community

scholarly journals Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?

2017 ◽  
Vol 16 (5) ◽  
pp. 43
Author(s):  
Andre M Louw
Keyword(s):  
South African ◽  
Current Approach ◽  
Good Faith ◽  
Law Reform ◽  
Constitutional Court ◽  
The South ◽  
The Supreme Court ◽  
The Republic ◽  
Near Future ◽  
Court Of Appeal

 This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts. 

scholarly journals The “Revolving Door” of the Customary Marriages’ Validity Requirement in Action ‒ Mbungela v Mkabi [2019] ZASCA 134

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 186-193
Author(s):  
Mpho Paulus Bapela ◽  
Phillip Lesetja Monyamane
Keyword(s):  
Case Law ◽  
Case Note ◽  
Revolving Door ◽  
Constitutional Court ◽  
Plain Language ◽  
The Supreme Court ◽  
The Face ◽  
Specific Outcome ◽  
The Republic ◽  
Court Of Appeal

On the face of it, section 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) does not look ominous. Notwithstanding the plain language of the above provision, there is abundant case law and academic articles dealing with the interpretation and/or application of section 3(1)(b) in particular. A decision of the Supreme Court of Appeal (SCA) in Mbungela v Mkabi ((820/2018) [2019] ZASCA 134) adds to what is fast becoming a jurisprudence of the salient issues relating to the understanding of paragraph (b) of subsection (1). The issue of the scope of this paragraph has become more relevant in the inquiry into the transfer and/or integration of the bride into the groom’s family pursuant to the conclusion of a lobolo agreement. In his latest academic offering, Manthwa introduces this ongoing Achilles heel of customary marriages by referencing a number of cases and academic opinions; the references serve to justify the relevance of his work in the presence of so much jurisprudence on the topic. It is prudent to highlight also that Bakker provided an insightful criticism of the court a quo in Mkabe v Minister of Home Affairs ((2014/84704) [2016] ZAGPPHC 460). On the whole, it is argued here that the judgment of the SCA is incorrect in a few material respects and that the criticism by Bakker of the court a quo is legally sound and contributes meaningfully to the jurisprudence in this area.As this case note demonstrates, the SCA not only incorrectly interprets and applies the law, but the judgment also unjustifiably departs from precedents relating to the transfer and/or integration of the bride. In effect therefore, it is submitted, the SCA establishes a changeable attitude relating to the transfer and/or integration of the bride. This attitude is symptomatic of an apparent constitutional interpretation that desires a specific outcome almost at any cost. As such, this case note is relevant as it captures the latest instalment of the changing attitude towards the precepts of the transfer and/or integration of the bride. Thus, there is as much a need for continuous monitoring of this revolving door of interpretation and/or application as there is for cases dealing with this aspect. The matter is therefore considered as unsettled and merits ongoing academic discourse.This issue of unsettled law finds resonance in the pronouncements of the Constitutional Court in Bhe v Magistrate, Khayelitsha ([2004] ZACC 17 par 112).In light of the foregoing, the casuistic and often contradictory jurisdiction on the issue of transfer and/or integration of the bride is considered in the context of the constitutional injunction in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (the Constitution) and the facts of the case in Mbungela v Mkabi (supra).

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.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

2020 ◽  
Vol 33 (3) ◽  
pp. 617-645
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Personal Liberty ◽  
The Supreme Court ◽  
Present Part ◽  
Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

Contractual fairness: Conflict resolved?

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 321-342
Author(s):  
A Price
Keyword(s):  
South African ◽  
Contract Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Preparatory School ◽  
The Supreme Court ◽  
Fresh Impetus ◽  
Court Of Appeal ◽  
Apparent Conflict ◽  
Do So

In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.

scholarly journals Constitutional Court 1995 – 2012: How did the Cases reach the Court, Why did the Court refuse to consider Some of Them, and How Often did the Court Invalidate Laws and Actions?

2017 ◽  
Vol 16 (4) ◽  
pp. 45
Author(s):  
IM Rautenbach
Keyword(s):  
Supreme Court ◽  
Customary Law ◽  
Direct Access ◽  
Constitutional Court ◽  
Constitutional Amendments ◽  
Seventeenth Amendment ◽  
Exclusive Jurisdiction ◽  
The Supreme Court ◽  
Executive Action ◽  
Court Of Appeal

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: 35 referrals in terms of the interim Constitution;21 applications and referrals on matters within the exclusive jurisdiction of the Court;78 applications for confirmations of parliamentary or provincial laws and actions of the President;45 applications for direct access to the Constitutional Court;101 applications for leave to appeal against judgments of the Supreme Court of Appeal;150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: 7 refusals in respect of 35 referrals in terms of the interim Constitution;no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court;7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President;34 refusals in respect of 45 applications for direct access to the Constitutional Court;21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal;34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%);Constitutional amendments – 1 invalidation out of 6 considered (16.66%);Acts of Parliament – 85 invalidations out of 165 considered (51.51%);Bills of Parliament – 0 invalidations out of 2 considered (0%);Acts of Provinces – 6 invalidations out of 11 considered (54.54%);Bills of Provinces – 1 invalidations out of 2 considered (50%);Local government legislative measures – 2 invalidations out of 5 considered (40%);Common law and customary law – 8 invalidations out of 11 considered (72.72%);Administrative and executive action – 45 invalidations out of 71 considered (63,38%);Court discretionary action – 14 out of 35 considered (40%);Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

2006 ◽  
Vol 50 (1) ◽  
pp. 2-23 ◽  
Author(s):  
EVADNÉ GRANT
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Customary Law ◽  
Constitutional Court ◽  
The South ◽  
The Republic ◽  
Human Rights Norms ◽  
The Right ◽  
Human Rights Standards

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

2021 ◽  
Vol 9 ◽  
pp. 1-17
Author(s):  
Mikhalien Du Bois
Keyword(s):  
Supreme Court ◽  
South African ◽  
Animal Health ◽  
Main Issue ◽  
Constitutional Court ◽  
The South ◽  
Res Judicata ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
The Way

In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck’s Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court’s evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J’s decision focuses more on the need to remove invalid patents from the register, Cameron J’s decision focuses on preventing harm from piecemeal litigation.

The Republic of South Africa

2021 ◽  
pp. 337-362
Author(s):  
Steven Gow Calabresi
Keyword(s):  
South Africa ◽  
South African ◽  
Judicial Review ◽  
African National Congress ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
South Africans ◽  
Nelson Mandela ◽  
Basic Law ◽  
The Republic

This chapter explores the origins and growth of judicial review in South Africa. Judicial review originated in South Africa in 1994 for rights from wrongs reasons. The great moral wrongs of racist Afrikaner and British imperial rule could only be overcome with a new Democratic Constitution, accepted by blacks and whites, with a very generous Bill of Rights that is enforced by a very powerful Constitutional Court. The African National Congress (ANC) party, led by Nelson Mandela, had called for a Bill of Rights and judicial review ever since the 1950s. In the 1990’s, the ANC got its wish. South African judicial review also result, in part, from borrowing. South Africans borrowed heavily from the Canadian Charter of Rights and Freedoms of 1982 and from the German Basic Law of 1949. South Africa particularly borrowed from Germany the idea of creating one very powerful Constitutional Court, which alone has the power of judicial review in South Africa.

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Chuks Okpaluba ◽  
Mpfariseni Budeli-Nemakonde
Keyword(s):  
South African ◽  
Retirement Age ◽  
Constitutional Court ◽  
Labour Law ◽  
Labour Relations ◽  
Appeal Court ◽  
Unfair Dismissal ◽  
The Supreme Court ◽  
Evaluation Exercise ◽  
Court Of Appeal

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’.  The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

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