scholarly journals A NEW LOOK AT AN OLD QUESTION – PRECISELY WHERE DOES A CAUSE OF ACTION BASED ON CONTRACT OR DELICT “ARISE” IN THE CASE OF CIVIL CLAIMS IN THE MAGISTRATES’ AND SMALL CLAIMS COURTS?

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
David Hulme ◽  
Stephen Peté
Keyword(s):  
South Africa ◽  
New South ◽  
Case Law ◽  
Access To Justice ◽  
Legislative Reform ◽  
Small Claims ◽  
The Many ◽  
New Look

One of the chief jurisprudential considerations of the new South Africa must be access to justice. Whilst various possibilities for the realization of this imperative are aired periodically, the principles on which the civil jurisdiction of the courts is based are seldom considered in this regard. However, complex and arcane rules of jurisdiction can place what this article argues to be unfair and largely pointless limitations on a plaintiff, particularly in respect of magistrates’ and small claims courts’ actions. Section 28(1)(d) of the Magistrates’ Courts Act, for example, which confers jurisdiction on a court in relation to the locality of the cause of action, can proveparticularly problematic in the case of claims based on contract. Jurisdiction cannot be conferred under this provision unless every “element” of the contract – offer, acceptance, performance and/or breach, has occurred within the same magisterial district. This article examines the many practical problems which arise as a result, as well as various interpretations of the existing case law, which may serve to alleviate these problems to a certain extent. The authors conclude, however, that legislative reform may be the only way in which to truly solve the many dilemmas which arise in practice.

scholarly journals NEW DILEMMAS AND NEW DIRECTIONS IN SOUTH AFRICA AFTER APARTHEID

Afrika Focus ◽  
2019 ◽  
Vol 31 (2) ◽  
Author(s):  
Stefaan Anrys ◽  
David Chan ◽  
Albie Sachs
Keyword(s):  
South Africa ◽  
Death Penalty ◽  
Coming Out ◽  
New South ◽  
Constitutional Court ◽  
The Third ◽  
New Directions ◽  
Freedom Fighters ◽  
Apartheid Regime ◽  
The Many

On 3 October 2016, Sachs, who collects honorary doctorates and other titles as if they were panini stickers, visited Ghent University for the third Mandela Lecture organised by the Africa Platform of the Ghent University Association, and moderated by Prof. Eva Brems. This interview was conducted on that occasion. ‘Since the attempt on my life, I see everything as rose-tinted’, laughs the man who sur- vived an attack, abolished the death penalty and was close to the ANC leadership. ‘If I were to become pessimistic about South Africa, people would really get scared, they’d say: Oh, even Albie doesn’t like it anymore ’(laughs). In 1988 Albie Sachs was viciously attacked, losing his right arm and the sight of one eye. He was living in exile in Mozambique at the time, as South Africa suffered under the Apartheid regime. Sachs was one of the prominent freedom fighters, but survived the assassination attempt and eventually became an important member of the ANC, one of the many authors of the Constitution of the new South Africa. He was also invited by Mandela to sit on the Constitutional Court, which abolished the death penalty and forced Parliament to legalise LGBT marriage. In Ghent, the now 81-year-old freedom fighter nuances the pessimistic news coming out of South Africa. ‘A lot is going wrong in South Africa. But what gives me hope is that people can speak their minds. Our democracy works. Our institutions work, and not just the courts and tribunals. Recently we had elections, and they were free and fair. And yes, the ANC lost the elections. But that is in fact the best evidence that our democracy works.’

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

Epistemic Ruptures in South African Standpoint Knowledge-Making: Academic Feminism and the #FeesMustFall Movement

2017 ◽  
Vol 4 (1) ◽  
Author(s):  
Desiree Lewis ◽  
Cheryl Margaret Hendricks
Keyword(s):  
South Africa ◽  
South African ◽  
Political Thought ◽  
Economic Restructuring ◽  
Student Protests ◽  
Political Processes ◽  
Academic Feminism ◽  
The Many ◽  
Radical Knowledge ◽  
Intellectual Activism

Alongside the many structural and political processes generated by the #FeesMustFall student protests between 2015 and 2016 were narratives and discourses about revitalising the transformation of universities throughout South Africa. It was the very notion of “transformation,” diluted by neo-liberal macro-economic restructuring from the late 1990s, that students jettisoned as they increasingly embraced the importance of “decolonisation.” By exploring some of the key debates and interventions driven by the #FeesMustFall movement, we consider how earlier trajectories of feminist knowledge-making resonate with these. The article also reflects on how aspects of intellectual activism within the student protests can deepen and push back the frontiers of contemporary South African academic feminism. In so doing, it explores how radical knowledge-making at, and about, universities, has contributed to radical political thought in South Africa.

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

Trans Rights Are Not Just Human Rights: Legal Strategies for Trans Justice

2020 ◽  
Vol 35 (2) ◽  
pp. 293-315 ◽  
Author(s):  
Samuel Singer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Social Benefits ◽  
Human Rights Law ◽  
Trans People ◽  
Legal Challenges ◽  
Legal Advocacy ◽  
And Gender ◽  
Legal Strategies ◽  
The Many

AbstractHuman rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.

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