scholarly journals Editorial

2016 ◽  
Vol 18 (3) ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
Black People ◽  
Outer Space ◽  
Rapid Development ◽  
Customary Law ◽  
Constitutional Court ◽  
Western Cape ◽  
Space Technology ◽  
Persons With Disabilities ◽  
The Republic

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.

scholarly journals Editorial

2016 ◽  
Vol 18 (3) ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
Black People ◽  
Outer Space ◽  
Rapid Development ◽  
Customary Law ◽  
Constitutional Court ◽  
Western Cape ◽  
Space Technology ◽  
Persons With Disabilities ◽  
The Republic

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals COLD COMFORT FOR THE PARTIES TO A MUSLIM MARRIAGE - THE SAGA CONTINUES Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae [2009] ZACC 19

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Razaana Denson ◽  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
Cape Town ◽  
Constitutional Court ◽  
Western Cape ◽  
Youth Movement ◽  
High Court ◽  
Muslim Youth ◽  
The Republic

In Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae) ([2009] ZACC 19), the Constitutional Court was faced with an application for the confirmation of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987 (hereinafter “the ISA”). The application was made pursuant to the decision of the Western Cape High Court, Cape Town in Hassam v Jacobs NO ([2008] 4 All SA 350 (C)), where it was held that the word “spouse” as utilized in the ISA could be extended to include parties in a de facto polygynous Muslim marriage. The impugned provisions of the ISA were held to exclude widows of polygynous Muslim marriages in a discriminatory manner from the protection offered by the ISA. The Western Cape High Court therefore declared section 1(4)(f) of the ISA to be inconsistent with the Constitution as it makes provision for only one spouse in a marriage entered into in accordance with the tenets Muslim rites to be an heir. The decision of Western Cape High Court was referred to the Constitutional Court in terms of section 172(2)(a) of the Constitution of the Republic of South Africa Act, Act 108 of 1996.

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.

scholarly journals Editorial

2016 ◽  
Vol 18 (4) ◽  
pp. 0
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
International Law ◽  
Rule Of Law ◽  
Hate Speech ◽  
Water Security ◽  
Customary Law ◽  
Constitutional Court ◽  
Western Cape ◽  
The Rule Of Law ◽  
Western Law

This edition of PER consists of one oratio, 13 articles and one book review dealing with a variety of themes.The first contribution is an oratio delivered by Lourens du Plessis at a colloquium hosted by the Faculty of Law, University of the Western Cape, on 2 October 2015 to celebrate his life and work, in which he aptly refers to himself as a "learned jackal for justice".The first of the 13 articles is by Lonias Ndlovu, who uses the 2013 Supreme Court of India case of Novartis AG v Union of India to argue for legislative reform by SADC members in the granting of patents for new versions of old medicines. Secondly, Lunga Siyo and John Mubangizi consider whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges, which is fundamental to democracy.Leah Ndimurwimo and Melvin Mbao trace the root causes of Burundi's systemic armed violence and argue that despite several UN Security Council Resolutions and peace agreements aimed at national reconciliation and reconstruction, mass killings and other heinous crimes remain unaddressed. In the fourth place, Marelize Marais and Jan Pretorius present a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Phillipa King and Christine Reddell discuss the pivotal role of the public in water use rights, especially in the context of theNational Water Act 36 of 1998 in the fifth article. The difficulties surrounding the tripartite scheme of statutory, constitutional and living law in a pluralistic system such as South Africa are the focus of the article by Rita Ozoemena. She uses the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC) as an example to illustrate the difficulties experienced in trying to balance this scheme. Angela van der Berg critically discusses and describes from a legal perspective the potential and function of public-private partnerships (PPPs) between local government (municipalities) and the private sector in fulfilling the legally entrenched disaster management mandate of municipalities. André van der Walt and Sue-Mari Viljoen argue that there are sound theoretical and systemic reasons why it is necessary to keep in mind the differences between property, land rights and housing rights when analysing, interpreting and applying any of these rights in a specific constitutional text. The special procedural measures which must be considered in terms of the Consumer Protection Act 68 of 2008 in order to decide if a contract is procedurally fair are analysed by Philip Stoop in his article. Liz Lewis also scrutinises the judicial development of customary law in the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC). She pleads for a judicial approach which take cognisance of the norms and values with reference to their particular context and audience instead of those embedded in international and western law. Water security, which is dealt with by Ed Couzens, remains a highly topical theme in a country such as South Africa. He explores ways to circumvent the effects of the Constitutional Court in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) with regard to the allocation of water to the poor. Izelle du Plessis discusses some of the existing opinions regarding the incorporation of double taxation agreements into the domestic law of South Africa. Last, but not least, Koos Malan deliberates on the rule of law and constitutional supremacy and comes to the conclusion that they are, from the perspective of the factual dimension of the law, more susceptible to the volatility of unpredictable changes and instability than the doctrine of the rule of law and constitutional supremacy purport them to be.In the last contribution to this edition, Robbie Robinson reviews the book "International Law and Child Soldiers" written by Gus Waschefort and published by Hart Publishing (Oxford) in 2015. He is of the opinion that the book is asine qua non for studies of children in international law.

scholarly journals The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation

2017 ◽  
Vol 15 (1) ◽  
pp. 23
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Common Law ◽  
Customary Law ◽  
Constitutional Court ◽  
Section 8 ◽  
The Republic

                                     The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

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