scholarly journals CASE NOTE: Illegal sales of alcohol and asset forfeiture

2016 ◽  
Author(s):  
Karabo Ngidi
Keyword(s):  
South Africa ◽  
Organised Crime ◽  
Case Note ◽  
Constitutional Court ◽  
High Court ◽  
Legal Limit ◽  
Asset Forfeiture ◽  
National Director ◽  
Business As Usual ◽  
The Impact

The Constitutional Court recently confirmed an order for the forfeiture of a house from which an unlawful shebeen had been run for years (Van der Burg and Another v National Director of Public Prosecutions).In deciding whether to confirm the order of the full bench of  the High Court, Justice van der Westhuizen, writing for a unanimous court, addressed the following questions: whether the house was an instrumentality of an offence; whether the illegal sale of alcohol is an organised crime; the proportionality of the crime to the forfeiture under the Prevention of Organised Crime Act 121 of 1998 (the POCA); as well as the impact of the forfeiture on the rights of the children that lived in the house. This judgment comes at a time where issues such as the proposal for the reduction of the legal limit of alcohol for drivers to 0%2 are topical, and seems to point to a tougher stance towards the sale and consumption of alcohol in South Africa. The judgment may therefore be seen as a warning that the illegal sale of alcohol and running of a shebeen will no longer be seen as business as usual in cases where the seller does not heed the call to desist such business.

Removal of the National Director of Public Prosecution: A Critique of Emerging Constitutional Jurisprudence

2021 ◽  
Vol 35 (2) ◽  
Author(s):  
Mtendeweka Mhango
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Court Order ◽  
High Court ◽  
The Republic ◽  
South African Constitution ◽  
National Director ◽  
Constitutional Jurisprudence

In this article, I critically examine the constitutional provisions governing the removal of the National Director of Public Prosecutions. This examination is undertaken in the context of recent decisions by the High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23, which found certain provisions of the National Prosecuting Authority Act 32 of 1998, which governs the removal of the National Director, unconstitutional. The article is critical of these two court decisions for their failure to properly justify the order to invalidate the provisions of the National Prosecuting Authority Act and to provide a proper account of the different separation of powers imperatives involved in the cases. The article is also critical of the Constitutional Court’s approach to the abstract review of the sections in the National Prosecuting Authority Act, and of its suspension of the order of invalidity in a manner which took no due regard to established jurisprudence. Lastly, the article is critical of the Constitutional Court’s omission to address the High Court order that the Deputy President should appoint the National Director, which runs counter to the text of the Constitution.

Corporal Punishment: Law Reform Lessons for Australia from South Africa and New Zealand

2021 ◽  
Vol 54 (2) ◽  
Author(s):  
Laetitia-Ann Greeff
Keyword(s):  
South Africa ◽  
New Zealand ◽  
Corporal Punishment ◽  
Cultural Change ◽  
National Level ◽  
Law Reform ◽  
Constitutional Court ◽  
In Loco Parentis ◽  
A Charge ◽  
The Impact

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.

Intermediaries for Child Witnesses: Old Problems, New Solutions and Judicial Differences in South Africa

2011 ◽  
Vol 19 (2) ◽  
pp. 251-269 ◽  
Author(s):  
F. Noel Zaal ◽  
Carmel R. Matthias
Keyword(s):  
South Africa ◽  
South African ◽  
International Standards ◽  
Child Witnesses ◽  
Constitutional Court ◽  
The South ◽  
Criminal Proceedings ◽  
High Court ◽  
African Experience ◽  
Implementation Problems

AbstractSouth Africa has utilised intermediaries to protect child witnesses and assist their communication in criminal proceedings in the magistrates' courts since 1993. is article examines some lessons to be learned from the South African experience. It provides an overview and assessment of attempts to overcome implementation problems and develop the legislation providing for intermediaries. It reviews contradictory solutions for improvement of the law recently put forward by the high court and constitutional court. Applying both the South African history and international standards, we argue that the high court offered a better way forward. We suggest some additional reforms which may also be relevant for advocates of the intermediary system in other jurisdictions.

scholarly journals THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Themba Maseko
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Note ◽  
Constitutional Court ◽  
National Assembly ◽  
High Court ◽  
The Rule Of Law ◽  
The Republic ◽  
The One ◽  
Do So

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.

scholarly journals Dawn of a new era for permanent life partners: from Volks v Robinson to Bwanya v Master of the High Court

De Jure ◽  
2020 ◽  
Vol 53 ◽  
Keyword(s):  
South Africa ◽  
South African ◽  
Positive Development ◽  
Court Case ◽  
Constitutional Court ◽  
Sex Partners ◽  
New Era ◽  
High Court ◽  
Long Time ◽  
Marital Union

SUMMARY The laws in South Africa pertaining to marital affairs have for a long time developed from a conservative form to a non-conservative one. This can be denoted from the passing of legislation such as the Recognition of Customary Marriages Act 120 of 1998, affording women in customary marriages the same protection as those in civil marriages as well as the Civil Union Act 17 of 2006, allowing same-sex partners to formalise their union. Since the advent of the Constitution it can therefore be concluded that the courts and legislature have worked relentlessly to ensure the equal enjoyment of rights to all South African people. Regardless of the immense efforts to develop this area of law, certain groups still remain unprotected and often rely on piece-meal protection often derived from court decisions. Such groups include heterosexual parties to a permanent life partnership. Although such permanent life partnerships are acknowledged in South Africa, there is no legislative protection with regards to maintenance or inheritance at the dissolution of the union. This is different to formalised unions such as marriage and civil unions with extensive legislation concerning the aftermath of such unions. A plethora of cases suggests that, this position has been challenged many times to no avail. In 2005, the Constitutional Court in Volks v Robinson, held that the distinction between married and unmarried couples could not be held to be unfair as a marriage encompassed legal reciprocal duties which were not present in a non-marital union. Effectively, permanent life partners could not claim maintenance or inheritance from the estate of their deceased partner. In a recent welcomed decision by the High Court, a heterosexual permanent life partner was permitted to inherit from the estate of her deceased partner. This article discusses the Constitutional Court case and the recent High Court case to elicit that South Africa is headed towards positive development with regard to marital unions and those akin to such unions.

From the Campbell Case to a Recent Ruling of the Constitutional Court of South Africa: Is There Any Hope to Revive the Tribunal of the Southern African Development Community?

2020 ◽  
Vol 28 (Supplement) ◽  
pp. 110-137
Author(s):  
Francesca Mussi
Keyword(s):  
South Africa ◽  
International Relations ◽  
Legal Reasoning ◽  
Case Law ◽  
Constitutional Court ◽  
Present Contribution ◽  
Constitutional Development ◽  
High Court ◽  
Legal Structure ◽  
The Republic

This article provides a critical analysis of the judgments delivered by the Regional High Court of Pretoria in the case Law Society of South Africa et al. v. President of the Republic of South Africa, the Minister of Justice and Constitutional Development, the Minister of International Relations and Co-operation and the Constitutional Court of South Africa in Law Society of South Africa and Others v. President of the Republic of South Africa and Others in order to investigate to what extent they can contribute to discuss the revival of the SADC Tribunal with all its original powers. After providing an overview of the SADC Tribunal's legal structure and the judgment delivered in 2008 in the Mike Campbell v. Zimbabwe case, the present contribution will consider the legal reasoning of the Regional High Court of Pretoria and the Constitutional Court of South Africa respectively. It will also develop some considerations of the role played by civil society groups in other SADC member states.

Notes: Splitting hairs? Bwanya v The Master of the High Court

2021 ◽  
Vol 138 (3) ◽  
pp. 521-534
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Western Cape ◽  
Sex Partners ◽  
Stare Decisis ◽  
High Court ◽  
Opposite Sex ◽  
Central Argument ◽  
To Come ◽  
Near Future

In Bwanya v The Master of the High Court 2021 (1) SA 138 (WCC), the Western Cape High Court ordered that the applicant, a partner in an opposite-sex partnership, was entitled to inherit from her deceased partner’s estate by ordering an amendment of the Intestate Succession Act 81 of 1987 to cater for unmarried opposite-sex partners. The court distinguished the case from Volks NO v Robinson 2005 (5) BCLR 446 (CC) — which precludes an unmarried partner from claiming maintenance from the deceased partner’s estate — on the basis that the case involved an inheritance claim as opposed to maintenance. The note argues that the failure of the court to deal with the central argument in Volks in respect of inheritance rights undermines the strength of the judgment. The Constitutional Court in confirmation proceedings should address this matter, and consider a softening of the doctrine of stare decisis to overrule the Volks case. Furthermore, the case opens the door to claims by other unmarried partners in polygamous relationships. While such claims involve policy considerations that are best addressed by the legislature, they are likely to come before the courts in the near future. Courts should recognise such claims in acknowledgment of the diversity in family formations in South Africa.

Liberty of Entering in International Agreements and Compliance of International Obligations

2021 ◽  
Vol 18 (1) ◽  
pp. 105-127
Author(s):  
Elisa Tino
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
International Agreements ◽  
Constitutional Court ◽  
The South ◽  
Member States ◽  
High Court ◽  
International Obligations

Abstract In August 2019 South Africa withdrew its signature from the Protocol on sadc Tribunal signed in 2014 by 9 sadc Member States. This decision was adopted in compliance with the judgment of the South African High Court as confirmed by the Constitutional Court which ruled that the participation of the President in the decision to suspend the sadc Tribunal, as well as his signature of the 2014 Protocol were unconstitutional, unlawful and irrational. These rulings are particularly ground-breaking in light of the conclusions they reached and raised some interesting implications under international law.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

2020 ◽  
Vol 23 (1) ◽  
pp. 355-385
Author(s):  
Brynne Guthrie
Keyword(s):  
South Africa ◽  
Political Context ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Unique Role ◽  
The Public ◽  
The Impact

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

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