scholarly journals A MISSED OPPORTUNITY TO SETTLE THE LAW ON DNA TESTING IN PATERNITY DISPUTES YD (now M) v LB 2010 6 SA 338 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Michael Buthelezi
Keyword(s):  
Deoxyribonucleic Acid ◽  
Parental Rights ◽  
Dna Testing ◽  
Biological Father ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
Legal Position ◽  
A Minor ◽  
Court Of Appeal ◽  
Missed Opportunity

On 17 September 2010, in (YD (Now M) v LB (2010 6 SA 338 (SCA)), the Supreme Court of Appeal (SCA) unanimously delivered what should have been a ground-breaking decision in the use of deoxyribonucleic acid (DNA) testing for paternity disputes. This was an appeal against the decision of Murphy J, in order to determine the child’s paternity. An order for DNA tests was granted by the court a quo against the mother and her daughter, Y, to determine whether Mr LB (B) was the biological father of Y in the case of unmarried persons. If the tests proved that he was the father, he would then be entitled to full parental rights. This judgment should have been ground-breaking for two main reasons. First, YD was the first SCA judgment dealing with the use of scientific tests in paternity disputes. Until then, different provincial divisions had reached different conclusions on the court’s power to compel either a minor or an adult to submit to the tests. Thus, YD was an ideal opportunity for the SCA to unify “the provincial divisions”, that is, to bring certainty of law regarding DNA testing for paternity disputes. Second, the decision came at a time of the constitutional era and the era of the Children’s Act (38 of 2005) with its section 37, which deals with parties not willing to submit to DNA testing in paternity disputes. In particular, section 37 is meant to be a statutory intervention seeking to achieve a compromise position where the court is faced with the evil of having to force a recalcitrant adult to submit himself or the minor child, against his or her will, for testing where paternity is disputed. Hence, this was an opportunity for the SCA to put section 37, which had not been tested before a court of law, into perspective. However, the court missed this golden opportunity. Therefore, the purpose of this note is to provide a critical analysis of the SCA’s decision of YD. It begins with a brief overview of the legal position prior to the judgment of YD and concludes by reviewing the possible effects of the YD judgment.

scholarly journals YM v LB (465/09) [2010] ZASCA 106 (17 September 2010)

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
LG Curlewis
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Dna Testing ◽  
Biological Father ◽  
High Court ◽  
The North ◽  
The Supreme Court ◽  
Court Of First Instance ◽  
Court Of Appeal

In this matter, which resulted in an enquiry by the Supreme Court of Appeal and ultimately a unanimous decision, the facts were the following: the appellant, Mrs Y M (M) appealed against an order that she and her minor daughter (Y) submit to DNA testing to determine whether Mr L B (B), the respondent, was the biological father of Y. The order was sought by B, who also claimed that, if the tests proved that he was indeed the father, he should be given full parenting rights. The North Gauteng High Court (Pretoria) (Murphy J sitting as court of first instance), ordered that M submit herself and Y to DNA tests within 30 days of the date of the order, and postponed the other relief sine die. The Supreme Court of Appeal granted leave to appeal. On appeal, B filed no heads of argument, and nor was there any appearance on his behalf.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

scholarly journals ADVANCING THE RIGHTS OF HETEROSEXUAL LIFE PARTNERS IN RESPECT OF LOSS OF SUPPORT Paixão v Road Accident Fund 2012 JDR 1749 (SCA)

Obiter ◽  
2014 ◽  
Vol 35 (1) ◽  
Author(s):  
Lizelle Ramaccio Calvino ◽  
Desan Iyer
Keyword(s):  
Ad Hoc ◽  
Family Law ◽  
Road Accident ◽  
Bill Of Rights ◽  
Same Sex ◽  
Civil Marriage ◽  
The Supreme Court ◽  
Legal Position ◽  
Wrongful Death ◽  
Court Of Appeal

The advent of the Constitution, as well as a reorientation in societal values, has seen old Western traditional rules being confronted with new challenges. The era of social change has consequently underscored the need for family law reform in certain areas of the law. A key aspect of family law and one that has come under constitutional scrutiny in recent times is that of persons living together as same-sex or heterosexual life partners. Life partnerships have none of the ex lege consequences of a civil marriage, and as such the consequences of a legally recognised marriage do not generally apply to life partners. A range of statutes have, however, given rise to specific spousal benefits being awarded to life partnerships , whilst, in the absence of same-sex partners being able to legalise their relationships, a number of ad hoc judgments have extended certain additional consequences of a civil marriage to same-sex life partners. The disparity in extending spousal benefits to same-sex life partners, to the exclusion of heterosexual life partners, raises the question of the tenability of the present legal position of life partnerships in light of the fact that the Constitution of South Africa is underpinned by values of equality and non-discrimination. Despite a decade of the aforementioned inequality, there seems to have been some movement made in restoring the dissimilarity of benefits afforded to same-sex life partners to the exclusion of their heterosexual counterparts. In this regard, the Supreme Court of Appeal has, of late, delivered judgments affording unmarried dependants in heterosexual life partnerships the locus standi to institute claims for loss of support arising from the wrongful death of a breadwinner. In this regard the case of Paixão is of particular importance as the case factors in the boni mores of society by finding that a tacit agreement between heterosexual life partners establishes a contractual reciprocal duty of support that is worthy of protection. The Paixão decision therefore shows a willingness to advance South Africa’s common law by affording protection to unmarried heterosexual life partnerships in line with their same-sex counterparts, as precipitated by the rights and values laid down in the Bill of Rights.  

scholarly journals Unauthorised adaptation of computer programmes - is criminalisation a solution? Haupt T/A Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA)

2017 ◽  
Vol 14 (7) ◽  
pp. 210
Author(s):  
Linda Muswaka
Keyword(s):  
Criminal Liability ◽  
Computer Programme ◽  
Criminal Sanction ◽  
High Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Marketing Intelligence ◽  
Legal Position ◽  
Court Of Appeal ◽  
Copyright Material

In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd. This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes.

scholarly journals Administracyjnoprawny obowiązek szczepienia dzieci a zgoda przedstawiciela ustawowego na badania kwalifikacyjne

2019 ◽  
pp. 9-28 ◽  
Author(s):  
Joanna Haberko
Keyword(s):  
Family Law ◽  
Parental Rights ◽  
Actual Situation ◽  
Mandatory Requirement ◽  
Preventive Vaccination ◽  
Legal Position ◽  
Mutual Relations ◽  
A Minor ◽  
Legal Character ◽  
Child Vaccination

The article focuses on the analysis of the parent situation (or statutory representatives) who are under legal requirement to subject their children to preventive vaccination. The main deliberations focus on answering the question of how the parents’ (or statutory representatives’) position should be treated if they, relying on the principle of autonomy and their parental rights, and pointing to their duty to exercise care of a minor and to represent a minor child, fail to take any action intended to implement the obligation imposed by law. Parents refer to the principle of child’s welfare and argue that vaccination constitutes an essential threat to the values they recognise, such as autonomy, freedom to make decisions regarding the actual situation and legal position of a child, or the child’s welfare. The issue of parents’ autonomy and implementation of child’s welfare is raised. Parents often bring up an argument of the harmful eff ects of vaccination and claim that by refusing to agree to vaccination they exercise the principle of child’s welfare. The legal character of the refusal to consent to child vaccination is also analysed. Here, deliberations are set in the context of imprecisely formulated statutory provisions and their mutual relations, especially in the context of the meeting of acts from two branches of law:  administrative and civil, and within the latter family law in particular. An attempt has been made to explain doubts whether despite the mandatory requirement and resulting from it obligation threatened with an administrative fi ne statutory representatives still have a right to express or not consent for vaccination of their children or to decide about at any stage of the procedure.

scholarly journals GLOSS TO THE DECISION OF THE SUPREME COURT OF 5 SEPTEMBER 2019, I KZP 7/19

Probacja ◽  
2020 ◽  
Vol 2 ◽  
pp. 159-170
Author(s):  
Grzegorz Kazimierski
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Court Decision ◽  
Parental Rights ◽  
The Supreme Court ◽  
The Family ◽  
A Minor

Both parents, if they have full parental rights, are persons “obliged to exercise care and responsibility over a minor under 15 years of age” within the meaning of Article 211 of the Criminal Code (CC). Conversely, the parents (or one of them at least) are capable of committing the off ence set out in Article 211 of the CC if their parental rights are terminated, limited or suspended. If a provisional decision of a court, issued in the course of divorce, separation or annulment of marriage proceedings, orders the limitation (termination, suspension) of parental rights of one of the parents, such a decision should, as a rule, be interpreted literally. As such, a parent who no longer enjoys full parental rights under such decision can potentially commit the off ence set out in Article 211 of the CC. Nevertheless, not every court decision which provisionally determines the extent of contacts between a child and a parent, is tantamount to limiting parental rights. Indeed, under Article 107 of the Family and Guardianship Code it is possible to determine such contacts, including severe limitations for the father or the mother in this respect, while leaving both parents’ full parental rights intact.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

Features of the election of such preventive measure as house arrest in relation to minors

2020 ◽  
Vol 2020 (2) ◽  
pp. 153-157
Author(s):  
Ekaterina Manohina
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
House Arrest ◽  
The Supreme Court ◽  
The Russian Federation ◽  
A Minor

In the article, the author turns to the study of the peculiarities of choosing such a preventive measure as house arrest for minors. Due to the fact that the Code of Criminal Procedure of the Russian Federation does not precisely define cases when a court must elect a house arrest in relation to minors, in practice there are often difficulties in which cases to choose such a preventive measure as detention, and in which house arrest. In the work, the author attempts to determine the essence of such a preventive measure as house arrest and the peculiarities of his election in relation to minors, and also considers the prohibitions and (or) restrictions to which minors cannot be subjected. The positions contained in the resolution of the Plenum of the Supreme Court “On the practice of the application by the courts of legislation on preventive measures in the form of detention, house arrest and bail” are analyzed. The author expresses the opinion that it is inadvisable to choose such a preventive measure as house arrest for minors. Based on the study, the author makes recommendations on the possibility, at the discretion of the court, to make adjustments to the prohibitions and (or) restrictions to which a minor suspect or accused will be subjected to whom such a preventive measure as house arrest is chosen.

scholarly journals The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover
Keyword(s):  
International Law ◽  
Legal Status ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Potential Impact ◽  
Human Rights Norms ◽  
Domestic Law ◽  
Court Of Appeal

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

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