scholarly journals JUDICIAL DISCRETION IN THE DETERMINATION OF POST-DIVORCE CHILD SUPPORT: A BRIEF OVERVIEW OF THE APPLICATION OF THE SOUTH AFRICAN MAINTENANCE ACT 99 OF 1998 AS COMPARED TO THE CANADIAN FEDERAL CHILD SUPPORT GUIDELINES OF 1997

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Marita Carnelley ◽  
Juanita Easthorpe

There are various models for determining and allocating child support obligations post-divorce and many different principles upon which such a policy can be based. In most legal systems the parents retain the duty to support their needy children after divorce as it is primarily their obligation to ensure the adequate financial welfare of their children. This principle is applicable in both the South African and Canadian legal systems. In South Africa, in terms of both the common law and legislation, both parents must maintain their children “according to their respective means”. The awarding of a specific amount of maintenance is, however, a complex process calculated by the courts on a case-by-case basis mainly by considering two issues: the needs of the children and the parents’ ability to maintain their children within the circumstances and means of each of the parents. Although both aspects are important in a maintenance enquiry, the focus of this note is on the interpretation of the calculation of the contribution of each of the parents, especially the non-custodial parent. The interpretation of the concept “means” obviously has important consequences for the parties: the broader the interpretation of the “means” of a parent, the higher the proportion of the contribution of that parent would be towards the support of the children. This is especially important in South Africa where a substantial proportion of those who are obligated to pay maintenance is impecunious. The Canadian law rested on similar principles until 1997 when the federal government promulgated the Federal Child Support Guidelines as an amendment to the Divorce Act. The impact of these Guidelines on the calculation of the parental share of post-divorce child support has been far-reaching. The aim of this note is firstly to examine the meaning of the term “means” within the South African legal system as set out in the common law, the various statutes and as these have been interpreted by the majority of courts over the past century. The second aim is to give a brief overview of the Canadian Guidelines and to compare their current system with the South African scenario. The rationale for choosing this jurisdiction is (i) the fact that in both jurisdictions the courts have the ultimate say over the amount of support paid; and (ii) as the Canadian position before their 1997 amendments was similar to the current South Africa system, it was envisaged that by exploring their reasons for change and evaluating their current system, some useful insights might be gained in solving some problems experienced in the South African maintenance system. The note will conclude with some suggestions for reform in South Africa in light of the Canadian experience. 

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda

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.


Author(s):  
Fatima Osman

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.


Author(s):  
Christa Rautenbach

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.


Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Oyebanke Yebisi ◽  
Victoria Balogun

Marital rape is a form of sexual violence, which is often downplayed due to the common law position that a man cannot rape his wife. While certain jurisdictions have enacted laws criminalising it, other jurisdictions have yet to criminalise it. This paper focuses on the criminal aspects of marital rape and examines the laws regarding marital rape in South Africa and the general rape provisions in Nigeria. While marital rape is punishable under South African criminal law, it is not in Nigeria. In this paper, the provisions of the South African Criminal Law (Sexual Offences and Other Related Matters) Act of 2007, the Criminal Code Act, and the Penal Code Act – Nigeria in relation to rape and marital rape – are analysed. This paper also discusses the South African Sexual Offences Court, sentencing for rape in the selected countries, and relevant case law. It concludes that South Africa (SA) has a generally good framework with respect to rape and marital rape, but the country should work more on the strict application of the laws in place. It also suggests that Nigeria should establish a sexual offences court using the South African model and should amend the Criminal Law to expressly criminalise marital rape.


2020 ◽  
Author(s):  
Neven Chetty ◽  
Bamise Adeleye ◽  
Abiola Olawale Ilori

BACKGROUND The impact of climate temperature on the counts (number of positive COVID-19 cases reported), recovery, and death rates of COVID-19 cases in South Africa's nine provinces was investigated. The data for confirmed cases of COVID-19 were collected for March 25 and June 30, 2020 (14 weeks) from South Africa's Government COVID-19 online resource, while the daily provincial climate temperatures were collected from the website of the South African Weather Service. Our result indicates that a higher or lower climate temperature does not prevent or delay the spread and death rates but shows significant positive impacts on the recovery rates of COVID-19 patients. Thus, it indicates that the climate temperature is unlikely to impose a strict limit on the spread of COVID-19. There is no correlation between the cases and death rates, an indicator that no particular temperature range is closely associated with a faster or slower death rate of COVID-19 patients. As evidence from our study, a warm climate temperature can only increase the recovery rate of COVID-19 patients, ultimately impacting the death and active case rates and freeing up resources quicker to enable health facilities to deal with those patients' climbing rates who need treatment. OBJECTIVE This study aims to investigate the impact of climate temperature variation on the counts, recovery, and death rates of COVID-19 cases in all South Africa's provinces. The findings were compared with those of countries with comparable climate temperature values. METHODS The data for confirmed cases of COVID-19 were collected for March 25 and June 30 (14 weeks) for South African provinces, including daily counts, death, and recovery rates. The dates were grouped into two, wherein weeks 1-5 represent the periods of total lockdown to contain the spread of COVID-19 in South Africa. Weeks 6-14 are periods where the lockdown was eased to various levels 4 and 3. The daily information of COVID-19 count, death, and recovery was obtained from South Africa's Government COVID-19 online resource (https://sacoronavirus.co.za). Daily provincial climate temperatures were collected from the website of the South African Weather Service (https://www.weathersa.co.za). The provinces of South Africa are Eastern Cape, Western Cape, Northern Cape, Limpopo, Northwest, Mpumalanga, Free State, KwaZulu-Natal, Western Cape, and Gauteng. Weekly consideration was given to the daily climate temperature (average minimum and maximum). The recorded values were considered, respectively, to be in the ratio of death-to-count (D/C) and recovery-to-count (R/C). Descriptive statistics were performed for all the data collected for this study. The analyses were performed using the Person’s bivariate correlation to analyze the association between climate temperature, death-to-count, and recovery-to-count ratios of COVID-19. RESULTS The results showed that higher climate temperatures aren't essential to avoid the COVID-19 from being spread. The present results conform to the reports that suggested that COVID-19 is unlike the seasonal flu, which does dissipate as the climate temperature rises [17]. Accordingly, the ratio of counts and death-to-count cannot be concluded to be influenced by variations in the climate temperatures within the study areas. CONCLUSIONS The study investigates the impact of climate temperature on the counts, recovery, and death rates of COVID-19 cases in all South Africa's provinces. The findings were compared with those of countries with comparable climate temperatures as South Africa. Our result indicates that a higher or lower climate temperature does not prevent or delay the spread and death rates but shows significant positive impacts on the recovery rates of COVID-19 patients. Warm climate temperatures seem not to restrict the spread of the COVID-19 as the count rate was substantial at every climate temperatures. Thus, it indicates that the climate temperature is unlikely to impose a strict limit on the spread of COVID-19. There is no correlation between the cases and death rates, an indicator that there is no particular temperature range of the climatic conditions closely associated with a faster or slower death rate of COVID-19 patients. However, other shortcomings in this study's process should not be ignored. Some other factors may have contributed to recovery rates, such as the South African government's timely intervention to announce a national lockout at the early stage of the outbreak, the availability of intensive medical care, and social distancing effects. Nevertheless, this study shows that a warm climate temperature can only help COVID-19 patients recover more quickly, thereby having huge impacts on the death and active case rates.


2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor

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.


2016 ◽  
Vol 6 (4) ◽  
pp. 503-509 ◽  
Author(s):  
Hlako Choma ◽  
Thifulufhelwi Cedric Tshidada ◽  
Tshegofatso Kgarabjang

The purpose of this paper is to examine two South Africa legislations dealing with over indebtedness of a consumer. It is clear that in terms of the South African law, section 129 (1) and 130 (3) of the National Credit Act provide that a creditor provider who wishes to enforce a debt under a credit agreement must first issue a section 129 (1) (a) notice to the consumer (the purpose of the notice is to notify the consumer of his/her arrears). On the other hand, the South African National Credit Act encourages the consumers to fulfil the financial obligations for which they are responsible. The second legislation to be examined which serve or appear to serve same purpose as the National Credit Act is the Insolvency Act. It therefore, postulated that the compulsory sequestration of a consumer in terms of the Insolvency Act would stand as an alternative remedy for a credit provider before she/he can have recourse mechanisms, such as debt review that are focused on satisfaction of the consumer’s financial obligation , in terms of the provisions of the National Credit Act. The paper determines to what extend these measures comply with the constitutional consumer protection demands. The legislature had been pertinently cognizant of the Insolvency Act when it lately enacted the National Credit Act. This is much apparent from the express amendment of section 84 of the Insolvency Act to the extent set out in schedule 2 of the National Credit Act


Plant Disease ◽  
2008 ◽  
Vol 92 (6) ◽  
pp. 982-982 ◽  
Author(s):  
T. van Antwerpen ◽  
S. A. McFarlane ◽  
G. F. Buchanan ◽  
D. N. Shepherd ◽  
D. P. Martin ◽  
...  

Prior to the introduction of highly resistant sugarcane varieties, Sugarcane streak virus (SSV) caused serious sugar yield losses in southern Africa. Recently, sugarcane plants with streak symptoms have been identified across South Africa. Unlike the characteristic fine stippling and streaking of SSV, the symptoms resembled the broader, elongated chlorotic lesions commonly observed in wild grasses infected with the related Maize streak virus (MSV). Importantly, these symptoms have been reported on a newly released South African sugarcane cultivar, N44 (resistant to SSV). Following a first report from southern KwaZulu-Natal, South Africa in February 2006, a survey in May 2007 identified numerous plants with identical symptoms in fields of cvs. N44, N27, and N36 across the entire South African sugarcane-growing region. Between 0.04 and 1.6% of the plants in infected fields had streak symptoms. Wild grass species with similar streaking symptoms were observed adjacent to one of these fields. Potted stalks collected from infected N44 plants germinated in a glasshouse exhibited streak symptoms within 10 days. Virus genomes were isolated and sequenced from a symptomatic N44 and Urochloa plantaginea plants collected from one of the surveyed fields (1). Phylogenetic analysis determined that while viruses from both plants closely resembled the South African maize-adapted MSV strain, MSV-A4 (>98.5% genome-wide sequence identity), they were only very distantly related to SSV (~65% identity; MSV-Sasri_S: EU152254; MSV-Sasri_G: EU152255). To our knowledge, this is the first confirmed report of maize-adapted MSV variants in sugarcane. In the 1980s, “MSV strains” were serologically identified in sugarcane plants exhibiting streak symptoms in Reunion and Mauritius, but these were not genetically characterized (2,3). There have been no subsequent reports on the impact of such MSV infections on sugarcane cultivation on these islands. Also, at least five MSV strains have now been described, only one of which, MSV-A, causes significant disease in maize and it is unknown which strain was responsible for sugarcane diseases on these islands in the 1980s (2,3). MSV-A infections could have serious implications for the South African sugar industry. Besides yield losses in infected plants due to stunting and reduced photosynthesis, the virus could be considerably more difficult to control than it is in maize because sugarcane is vegetatively propagated and individual plants remain within fields for years rather than months. Moreover, there is a large MSV-A reservoir in maize and other grasses everywhere sugarcane is grown in southern Africa. References: (1) B. E. Owor et al. J Virol. Methods 140:100, 2007. (2) M. S. Pinner and P. G. Markham. J. Gen. Virol. 71:1635, 1990. (3) M. S. Pinner et al. Plant Pathol. 37:74, 1998.


2016 ◽  
Vol 22 (1) ◽  
pp. 2
Author(s):  
Marthinus P. Stander ◽  
Margreet Bergh ◽  
Helen Elizabeth Miller-Janson ◽  
Janetta C. De Beer ◽  
Frans A. Korb

Depression is a common psychiatric disorder and can be costly, having a significant impact on the individual and employers. The South African Depression and Anxiety Group (SADAG) in partnership with HEXOR, with the support of Lundbeck, undertook research into depression in the workplace, because South African information is not available on this topic. It provides insight into the prevalence of depression within the workplace in South Africa, as well as the impact of depression on the employees and employers in terms of sick leave and levels of productivity, especially when the symptoms include cognitive impairment. It is apparent that stigma plays a pivotal role in the reasons for non-disclosure to employers. It further highlights the magnitude of awareness, early detection and the provision of a holistic support system within the work environment, free from bias, to ensure that optimum benefit can be achieved for both employer and employee.


2019 ◽  
Vol 8 (12) ◽  
pp. 330 ◽  
Author(s):  
Thomas Habanabakize ◽  
Daniel Francois Meyer ◽  
Judit Oláh

Many developing countries are facing high levels of unemployment and most people who are employed are poorly remunerated due to low skills and productivity levels. Although jobs are important, a productive job is even more important, not only for employees, but also for employers. South Africa, being a developing country, is also facing the challenge of dramatically high levels of unemployment. This study’s aim was to examine both the short- and long-term impacts of real wages, labour productivity and investment spending on employment absorption rates in South Africa. To establish the existing relationship between variables, the study applied several econometric approaches, such as an autoregressive distributed lag (ARDL) model, error correction model (ECM) and a Toda–Yamamoto causality analysis on quarterly time series data from 1995Q1 to 2019Q1. The results revealed the existence of both short- and long-run relationships among the variables. While a positive relationship was found between employment absorption, investment spending and labour productivity, it was found that real wages negatively impact on long-run employment absorption rates. Additionally, the short-run analysis indicated that the lagged employment absorption rate influences the current rate of employment. Furthermore, the causality tests indicated that a bi-directional causal relationship exists between employment absorption and investment spending; and a uni-directional relationship between employment and both real wages and labour productivity. Based on the findings, the study recommends increments of investment spending and labour productivity that enables the South African economy to carry out more activities that would require more workers, thereby improving the employment absorption rate. The fact that labour productivity positively impacts the employment absorption rate infers the requirement for quality and skilled workers to be absorbed in the South African labour market. Therefore, labour skills improvements appear to be a prerequisite for productivity enhancement and job creation.


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