scholarly journals HINDOE-EGGENOTE, WEET JY WAT JOU REGSPOSISIE IN DIE SUID-AFRIKAANSE REG IS?

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
SIJ Cordier ◽  
C Rautenbach
Keyword(s):  
South African ◽  
High Court ◽  
Civil Marriage ◽  
Legal Position

This article investigates the legal position of a Hindu wife married in terms of Hindu rites. In general, her marriage is not recognised as a valid marriage because it does not comply with the requirements set out in the Marriage Act 25 of 1961. Although the Durban and Coast Local Division of the High Court recently held that she is a "spouse" in terms of the Intestate Succession Act 81 of 1987, her legal position is far from certain. In Singh v Rampersad 2007 3 SA 445 (D) the court held that a monogamous marriage in terms of Hindu rites is not a valid marriage in terms of South African law. The non-recognition of her marriage has certain consequences, especially when a Hindu wife wants to dissolve her "marriage" or one of the "spouses" dies. In this contribution the differences between a Hindu marriage and a civil marriage are pointed out, including the possible consequences if parties want to conclude a marriage in terms of Hindu rites only. 

scholarly journals An Embarrassment of Riches or a Profusion of Confusion An Evaluation of the Continued Existence of the Civil Union Act of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa

2017 ◽  
Vol 13 (2) ◽  
pp. 29
Author(s):  
Bradley Shaun Smith ◽  
JA Robbie Robinson
Keyword(s):  
South Africa ◽  
South African ◽  
Family Law ◽  
Law Reform ◽  
Same Sex Couples ◽  
Civil Marriage ◽  
Civil Union ◽  
Potential Development ◽  
Legal Position ◽  
Domestic Partnerships

As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006.  In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act. In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained.  With this potential development in mind, this paper considers the desirability of maintaining the "separate but equal" status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study).  A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa.

Summary judgment — Quo vadis?

2021 ◽  
Vol 138 (1) ◽  
pp. 88-114
Author(s):  
Thino Bekker
Keyword(s):  
South African ◽  
Historical Development ◽  
Access To Justice ◽  
High Court ◽  
The Core ◽  
Golden Opportunity ◽  
Quo Vadis ◽  
The Right ◽  
Summary Judgment ◽  
Made In

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.

scholarly journals Behoort die saaklike ooreenkoms aan vormvereistes onderwerp te word?

2017 ◽  
Vol 11 (3) ◽  
pp. 137
Author(s):  
PJW Schutte
Keyword(s):  
The Netherlands ◽  
South African ◽  
Circumstantial Evidence ◽  
Power Of Attorney ◽  
Transfer Property ◽  
Land Registration ◽  
The Real ◽  
Legal Position

No formalities are required in South African law in respect of the real agreement relating to the transfer of ownership in immovable property. The agreement is, for example, derived from surrounding circumstances, such as the fact that the parties concluded an obligatory agreement which is aimed at the transfer of property, or the fact that the transferor has signed a power of attorney, or the fact that the transferee has paid transfer duty. However, this circumstantial evidence is not conclusive proof that an agreement to transfer property has in fact been concluded. The transferor might have signed the power of attorney, for example, while he was erroneously under the impression that he was signing an option, or the transferee might refuse to take delivery because the property does not correspond to the thing agreed upon. In each situation neither of the parties has the intention to transfer property, and ownership could therefore not be transferred. Yet registration is possible even in the absence of a valid real agreement. This may result in an incorrect register because the person who is indicated as the owner is in fact not. It therefore appears that there is a deficiency in South African law with regard to land registration and a need for greater certainty regarding the question as to whether or not a real agreement has in fact been concluded. In this paper two solutions are explored: (1) the defect can be rectified by requiring the parties to appear (either in person or by a representative) before a conveyancer and to declare that they respectively intend to transfer and obtain property, as is the case in the Netherlands and Germany. The conveyancer should reduce the agreement to writing and the document by which the parties are bound should then be lodged with the registrar as proof of the real agreement; (2) the real agreement may be incorporated into the deed of transfer. Any one of these proposals will remove any doubt regarding the existence of the real agreement and will ensure that the register reflects the true legal position. 

scholarly journals “DUPED” SHAREHOLDERS MAY APPLY FOR WINDING-UP ORDER – SECTION 81(1)(e) OF THE COMPANIES ACT 71 OF 2008 Pinfold v Edge to Edge Global Investments Ltd 2014 (1) SA 206 KZD

Obiter ◽  
2014 ◽  
Author(s):  
Darren Subramanien
Keyword(s):  
South African ◽  
The South ◽  
High Court ◽  
First Case ◽  
Public Company ◽  
Kwazulu Natal ◽  
A Company

In what is the first case of its kind that to have come before the South African courts the shareholders in Pinfold v Edge to Edge Global Investments Ltd (2014 (1) SA 206 KZD) were granted permission by the KwaZulu Natal High Court (Durban) to wind up Edge to Edge Global Investments, a public company on allegations of fraud committed by the directors of the company. The application was brought before the court in terms of section 81(1)(e) of the Companies Act 71 of 2008. The decision is significant as it provides insight as to what the courts would consider to be fraudulent, illegal and a misuse or waste of the company's assets by the directors of a company, and what the shareholders of a company need to prove in order to be successful in an application based on section 81(1)(e) of the Act.

The Impact of Cryptocurrencies on the General Powers and Duties of South African Insolvency Practitioners

2021 ◽  
Vol 33 (2) ◽  
pp. 289-318
Author(s):  
Sidasha Singh ◽  
Juanitta Calitz
Keyword(s):  
South African ◽  
Industry 4.0 ◽  
Industrial Revolution ◽  
Insolvency Law ◽  
International Courts ◽  
Fourth Industrial Revolution ◽  
Legal Position ◽  
The Subject ◽  
Regulatory Model ◽  
The Impact

Within the context of the fourth industrial revolution, cryptocurrencies pose several challenges in the framework of corporate insolvency law. In South African law, no statutory framework vis-à-vis cryptocurrencies, such as Bitcoin, currently exists. This has however not prevented entities from engaging in the cryptocurrency market. The specific dilemma is that insolvency practitioners do not have legislative guidelines to assist them in dealing with the subject of cryptocurrencies. Consequently, international judicial developments must be consulted and analysed with the aim to close the gap between the legislature and Industry 4.0. This article unpacks the South African legal position on cryptocurrencies within the context of the statutory powers and duties of insolvency practitioners. It engages in an analysis of selected international courts cases that have dealt with the concept of cryptocurrencies within the context of insolvent estates and continues to make recommendations for the development of an efficient and effective regulatory model.

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

2021 ◽  
Vol 138 (4) ◽  
pp. 697-715
Author(s):  
Thomas Coggin
Keyword(s):  
South African ◽  
Historical Geography ◽  
Cape Town ◽  
Social Function ◽  
Case Note ◽  
Provincial Government ◽  
Western Cape ◽  
High Court ◽  
The Social ◽  
Spatial Environment

In the Western Cape High Court decision of Adonisi, Gamble J framed the prevalence of well-located land scarcity in Cape Town with the phrase, ‘they’re not making land anymore’. In this case note, I present the court’s findings and reasoning in ruling against the Western Cape Provincial Government, and I argue we can read the judgment as an expression of the social function of property through two lenses: first, the manner in which the court situated the dispute within the spatial and historical geography of Cape Town; and, secondly, the way in which it prefaced the use value of property through its emphasis on meaning ful participation and on custodianship. Both lenses indicated the duty incumbent on the province as landowner and in service of its obligations under s 25(5) of the Constitution, which are important when resolving similar disputes given the scarred ownership landscape characterising the South African urban and spatial environment.

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 IMPLEMENTASI PERATURAN MAHKAMAH AGUNG REPUBLIK INDONESIA NOMOR 1 TAHUN 2016 TENTANG PROSEDUR MEDIASI DI PENGADILAN (Study Putusan Pengadilan Agama Rantauprapat No. No.487/Pdt.G/2020/PA-RAP Jo Putusan Pengadilan Tinggi Medan No.73/Pdt.G/2020/PTA-MDN)

2020 ◽  
Vol 8 (2) ◽  
pp. 72-81
Author(s):  
Muhammad Yusuf Siregar
Keyword(s):  
Supreme Court ◽  
Legal Aspects ◽  
Judicial System ◽  
Court Decision ◽  
High Court ◽  
Is Research ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Research Show

This study aims to analyze the legal aspects of the implementation of the Supreme Court Regulation No. 1 of 2016 on Mediation Procedures in Courts (Study of Rantauprapat Religious Court Decision No. 487 / Pdt.G / 2020 / PA-RAP Jo Medan High Court Decision No. 73 / Pdt.G / 2020 / PTA-MDN. This research is Normative Empirical, which is research by looking at conditions in the field by linking the source of laws and regulations in force in the Republic of Indonesia. The benefits that will be received from the results of this study are to find out and analyzing the legal position of the Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Courts and To find out and analyze the Implementation of the Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Courts in the Rantauprapat Religious Court Decision No.487 / Pdt .G / 2020 / PA-RAP Jo Medan High Court Decision No.73 / Pdt.G / 2020 / PTA-MDN. The results of the research show that the provisions of the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2008 and / or Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures in Courts in article 02 paragraph 04 states that "Judges in consideration of the decision of a case must state that the case concerned has strived for peace through Mediation by stating the name of the Mediator for the case concerned. The position of Mediation as stated in the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 is one of the steps that must be taken in carrying out the Judicial system which is based on the decision of the Medan High Court Panel of Judges declaring that to completely reject the Plaintiff's Lawsuit with the Consideration that the case has been taken through the Mediation route although not maximally and His legal consideration is that the position of the witnesses presented by the Plaintiff is a witness who did not see the Plaintiff and Defendant fighting, but only told the story of the Plaintiff. Keywords: Implementation, Procedure, Mediation

scholarly journals Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of South African and Commonwealth Decisions

2017 ◽  
Vol 16 (1) ◽  
pp. 240
Author(s):  
Chuks Okpaluba
Keyword(s):  
South African ◽  
New South ◽  
Supreme Court Of Canada ◽  
Trial Court ◽  
High Court ◽  
South Wales ◽  
The Supreme Court ◽  
State Of Mind ◽  
The Law ◽  
Available Information

The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.

scholarly journals ASSESSING THE WTO COMPLIANCE OF SELECTED ASPECTS OF SOUTH AFRICA’S INTERNATIONAL TRADE ADMINISTRATION AMENDMENT BILL

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Lonias Ndlovu
Keyword(s):  
International Trade ◽  
World Trade Organization ◽  
South African ◽  
World Trade ◽  
Regulatory Regime ◽  
Interested Party ◽  
Member States ◽  
The World ◽  
Legal Position

This article argues that while South Africa’s International Trade Administration Amendment Bill and the attendant proposed regulations may generally be regarded as a positive legislative intervention, to a large extent, the new regulatory regime goes against the spirit, object and purport of the World Trade Organization (WTO) anti-dumping agreement and is even in conflict with South Africa’s International Trade Administration Act itself. In order to substantiate the above reservations, this article first outlines the basics of WTO dumping and anti-dumping law before proceeding to point out aspects of South Africa’s anti-dumping law and practicewhich incorporate WTO tenets. With the aid of selected WTO disputes and examples from comparative WTO member states, this article also comments on selected impugned changes likely to be introduced by the Bill and the new regulations and concludes that the proposed new law is unlikely to be WTO compliant. This conclusion is premised on the fact that South African dumping and anti-dumping law relating to confidentiality, the process of conducting investigations, termination of investigations based on de minimis margins and interested party hearings does not always mimic the legal position as espoused in the WTO anti-dumping agreementand interpreted in selected WTO disputes.

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