scholarly journals MARITAL RAPE: A TALE OF TWO LEGAL SYSTEMS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Oyebanke Yebisi ◽  
Victoria Balogun
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Common Law ◽  
Case Law ◽  
Criminal Code ◽  
Marital Rape ◽  
The South ◽  
Sexual Offences ◽  
The Common

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.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

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.

scholarly journals The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Successful Implementation ◽  
The South ◽  
Legal Context ◽  
The Common ◽  
Law Of Succession ◽  
Statutory Regulation

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.

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
Keyword(s):  
South Africa ◽  
South African ◽  
Child Support ◽  
Current System ◽  
Common Law ◽  
Legal Systems ◽  
The South ◽  
The Common ◽  
The Impact ◽  
Support Guidelines

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. 

scholarly journals Some comments on the current (and future) status of Muslim personal law in South Africa

2017 ◽  
Vol 7 (2) ◽  
pp. 95
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Legal Order ◽  
Court Cases ◽  
State Law ◽  
Muslim Community ◽  
The South ◽  
The Common ◽  
Personal Law

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.

scholarly journals WHICH STRUCTURES DOES THE HOUSEBREAKING CRIME PROTECT?

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Shannon Hoctor
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Criminal Code ◽  
The South ◽  
Canadian Criminal Code ◽  
Definition Of ◽  
The Right ◽  
Movable Structure ◽  
Special Protection

The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation, which implies the right to “feel secure in one’s own home”. With the broadening of the ambit of the crime (variously referred to as burglary or breaking and entering in other jurisdictions) beyond merely protecting habitation, differing approaches have been taken in defining the nature of the premises that can be broken into. Thus in English law, to be a “building” within the definition of the crime (in terms of s 9(1) of the Theft Act, 1968) the structure is required to have some degree of permanence and an inhabited vehicle or vessel is specifically included in theterm “building” (s 9(4) of the Theft Act, 1968). In Canada, breaking and entering (in terms of s 348 of the Canadian Criminal Code, RSC 1985, c.C-46) include, within the understanding of a “structure” which can be broken into and entered, spaces enclosed by a fence, but not unenclosed spaces. The position in South Africa has not been definitively resolved, although it can at least be accepted that it is incorrect to state that the breaking into and entering can only be in respect of an immovable structure, and cannot be committed by breaking into a movable structure. What then is the South African position regarding the nature of a “premises” which is protected by the housebreaking crime?

scholarly journals The protection of environmental interests through corporate governance: A South African company law perspective

2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Corporate Governance ◽  
South African ◽  
Common Law ◽  
Company Law ◽  
The Common ◽  
Corporate Administrators ◽  
Environmental Interests

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.

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

scholarly journals A CRITICAL REFLECTION ON THE SOUTH AFRICAN LAW OF THE CHILD

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
RB Bernard ◽  
MC Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Best Interests ◽  
Teddy Bear ◽  
Wide Range ◽  
Minor Children ◽  
The Common ◽  
The Law ◽  
A Minor

Children are considered to be vulnerable, and therefore need to be protected against parents, strangers and even themselves. As a consequence, the State’s quest for the protection of children in South Africa is expressed in the implementation of legislation designed to offer greater care and protection. For instance, section 28 of the Constitution of the Republic of South Africa, 1996, offers a wide range of rights which are designed to offer greater protection to children. The rights of children can, in effect, be categorized into two themes. The first relates to the protection of children – as the child is dependent on those around him or her due to a lack of capacity, and is therefore vulnerable. The second theme relates to the autonomy of children. Section 28(2) of the Constitution provides that in any matter concerning a child, the best interests of the child are of paramount importance. However, most South African legislative provisions that deal with minor children seem to miss this principle, and are riddled with inconsistencies. In many statutes, where the principle is recognized, there is either limited appreciation of the significance of the principle and its overall impact on issues concerning children, or there is no coherence with the manner the courts have interpreted and applied the principle. For example, the recent judgment of  the Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The judgment has been heavily criticized by different segments of society for encouraging teens to engage in wanton sexual intercourse, but illustrates some of the flaws in legislation aimed at protecting the welfare of minor children in South Africa. Furthermore, the common law and other legislation such as the Choice on Termination of Pregnancy Act, the Marriage Act, and provisions of the Children’s Act regulating contraceptives and condoms, all contain such inconsistencies. For instance, the common law and section 24 (together with s 26) of the Marriage Act allow a minor from the age of puberty to enter into a valid marriage; section 129 of the Children’s Act requires that a minor aged twelve be assisted by a guardian to undergo a surgical operation; whereassections of the Choice Act do not require parental consent for terminating a minor’s pregnancy. This note reviews the above and other inconsistences currently prevalent in the law of the child in South Africa. A brief overview of the Teddy Bear Clinic case will be considered. Thereafter, it outlines and examines various gender-based contradictions in the law, and examines the possible rationale for justifying the particular legislative measure concerned. The note concludes by proposing possible solutions to the discrepancies that have been identified.

scholarly journals BARKING UP THE WRONG TREE ‒ THE ACTIO DE PAUPERIE REVISITED Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
André Mukheibir
Keyword(s):  
South African ◽  
Common Law ◽  
Strict Liability ◽  
Third Party ◽  
Roman Law ◽  
The South ◽  
The Supreme Court ◽  
Pain And Suffering ◽  
The Common ◽  
Law Of Delict

It is trite that the South African law of delict follows a generalising approach. This entails that liability will only ensue when all the elements of delict are present. South African law does not recognise individual “delicts”. The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity. This approach is further qualified in that numerous actions dating back to Roman law still exist in our law today. Included in this mix are the actions for harm caused by animals, such as the actio de pauperie, the actio de pastu, and the actio de feris, each with its own requirements. There have been questions as to whether these actions, in particular the actio de pauperie, still form part of South African law. In Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487) the defendant claimed that the actio was no longer part of the South African law. The Supreme Court of Appeal (SCA) per Olivier JA held that the actio de pauperie had been part of South African law for more than 24 centuries and not fallen into disuse. Olivier JA held that the fact that the action is based on strict liability (one of the arguments raised against it) is no reason to ban it from South African law as strict liability was increasing and in suitable instances fulfils a useful function.The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40). In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. The defendant held that the court should develop the common law in this regard. Considering both case law and the requirements for the development of the common law, the SCA held that such an extension could not be justified.

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