Obtaining redress (damages) for torture committed outside South Africa: A comment on Van Rensburg v Obiang (21748/2014) [2021] ZAWCHC 128 (18 June 2021)

In Van Rensburg v Obiang, the High Court (Western Cape Division) awarded the plaintiff damages for the torture, unlawful arrest, and detention to which the plaintiff was subjected by the respondent’s subordinates in Equatorial Guinea. However, the court does not clearly explain how the respondent was responsible for the applicant’s torture and the legal basis on which it made the order for damages. In this article, the author argues that the court’s order is debatable for the following reasons. The evidence before the court did not prove that the defendant had committed torture within the meaning of art. 1 of the UN Convention against Torture and sec. 3 of the Prevention and Combating of Torture of Persons Act; some of the acts attributed to the defendant as torture did not amount to torture; there was no legal basis on which the court based its order to award damages to the plaintiff for the torture committed abroad.

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Notes: Splitting hairs? Bwanya v The Master of the High Court

South African Law Journal ◽

10.47348/salj/v138/i3a4 ◽

2021 ◽

Vol 138 (3) ◽

pp. 521-534

Author(s):

Fatima Osman

Keyword(s):

South Africa ◽

Constitutional Court ◽

Western Cape ◽

Sex Partners ◽

Stare Decisis ◽

High Court ◽

Opposite Sex ◽

Central Argument ◽

To Come ◽

Near Future

In Bwanya v The Master of the High Court 2021 (1) SA 138 (WCC), the Western Cape High Court ordered that the applicant, a partner in an opposite-sex partnership, was entitled to inherit from her deceased partner’s estate by ordering an amendment of the Intestate Succession Act 81 of 1987 to cater for unmarried opposite-sex partners. The court distinguished the case from Volks NO v Robinson 2005 (5) BCLR 446 (CC) — which precludes an unmarried partner from claiming maintenance from the deceased partner’s estate — on the basis that the case involved an inheritance claim as opposed to maintenance. The note argues that the failure of the court to deal with the central argument in Volks in respect of inheritance rights undermines the strength of the judgment. The Constitutional Court in confirmation proceedings should address this matter, and consider a softening of the doctrine of stare decisis to overrule the Volks case. Furthermore, the case opens the door to claims by other unmarried partners in polygamous relationships. While such claims involve policy considerations that are best addressed by the legislature, they are likely to come before the courts in the near future. Courts should recognise such claims in acknowledgment of the diversity in family formations in South Africa.

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COLD COMFORT FOR THE PARTIES TO A MUSLIM MARRIAGE - THE SAGA CONTINUES Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae [2009] ZACC 19

Obiter ◽

10.17159/obiter.v31i1.12388 ◽

2021 ◽

Vol 31 (1) ◽

Author(s):

Razaana Denson ◽

Glynis van der Walt

Keyword(s):

South Africa ◽

Cape Town ◽

Constitutional Court ◽

Western Cape ◽

Youth Movement ◽

High Court ◽

Muslim Youth ◽

The Republic

In Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae) ([2009] ZACC 19), the Constitutional Court was faced with an application for the confirmation of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987 (hereinafter “the ISA”). The application was made pursuant to the decision of the Western Cape High Court, Cape Town in Hassam v Jacobs NO ([2008] 4 All SA 350 (C)), where it was held that the word “spouse” as utilized in the ISA could be extended to include parties in a de facto polygynous Muslim marriage. The impugned provisions of the ISA were held to exclude widows of polygynous Muslim marriages in a discriminatory manner from the protection offered by the ISA. The Western Cape High Court therefore declared section 1(4)(f) of the ISA to be inconsistent with the Constitution as it makes provision for only one spouse in a marriage entered into in accordance with the tenets Muslim rites to be an heir. The decision of Western Cape High Court was referred to the Constitutional Court in terms of section 172(2)(a) of the Constitution of the Republic of South Africa Act, Act 108 of 1996.

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A legal analysis in context: The Regulation of Gatherings Act – a hindrance to the right to protest?

South African Crime Quarterly ◽

10.17159/2413-3108/2017/v0n62a3044 ◽

2017 ◽

pp. 21-32

Author(s):

Jameelah Omar

Keyword(s):

South Africa ◽

Western Cape ◽

Legal Analysis ◽

Constitutional Democracy ◽

High Court ◽

The Past ◽

The Social ◽

Sharp Point ◽

Constitutional Right ◽

The Right

South Africa has seen a groundswell of protests in the past few years. The number of arrests during protest action has likewise increased. In June 2017 the Social Justice Coalition (SJC) challenged the constitutionality of the Regulation of Gatherings Act 205 of 1993 in the Western Cape High Court. This was an appeal from the magistrates’ court in which 21 members of the SJC were convicted of contravening the Regulation of Gatherings Act for failing to provide notice. This is the first court challenge to the constitutionality of the Regulation of Gatherings Act. Although the challenge was brought on restricted grounds, it highlights the Regulation of Gatherings Act as a sharp point of controversy. This article will consider the regulatory provisions and the extent to which they restrict the constitutional right to protest, particularly in light of the important role played by protest in South Africa’s constitutional democracy.

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Judicial Guidance on the Application of Section 49 of the Consumer Protection Act, 2008 – Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa (Pty) Ltd [2020] 1 All SA 857 (WCC)

Obiter ◽

10.17159/obiter.v41i4.10497 ◽

2021 ◽

Vol 41 (4) ◽

pp. 948-960

Author(s):

Mark Tait

Keyword(s):

South Africa ◽

Consumer Protection ◽

Western Cape ◽

Negative Consequences ◽

High Court ◽

Consumer Protection Act ◽

Consumer Contracts ◽

Number Of Publications ◽

The Impact

In South Africa, the legislature’s response to the negative consequences resulting from the pervasive use of disclaimers by suppliers has been to regulate the use of these terms through the enactment of a number of provisions in the Consumer Protection Act 68 of 2008 (CPA), including sections 48, 49 and 51. A number of publications have considered the meaning of these provisions and the impact they may have on the use of disclaimers in consumer contracts. As a consequence of the widespread use of disclaimers and the adverse consequences they may hold for consumers, any judicial pronouncement on the impact of the CPA on these clauses is significant. In Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa ([2020] 1 All SA 857 (WCC) (Skydive v UPS)), the Western Cape High Court was afforded the opportunity to consider the impact of aspects of section 49 specifically on the use of a clause in a consumer agreement excluding the risk or liability of suppliers (referred to as an “exemption clause” in this note).Section 49 of the CPA applies to four distinct types of clause enumerated in section 49(1) – namely, clauses limiting the risk or liability of suppliers in respect of any other person; clauses constituting an assumption of risk or liability by the consumer; clauses imposing an obligation on the consumer to indemnify the supplier for any cause; and clauses requiring a consumer to acknowledge a particular fact. As indicated, in Skydive v UPS, the contentious clause was one excluding the risk or liability of the supplier. The focus of this note then is on the interpretation and application by the court in Skydive v UPS of the relevant provisions of section 49 of the CPA to an exemption clause.

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On the Record: Sally Gandar and Popo Mfubu

South African Crime Quarterly ◽

10.17159/2413-3108/2019/v0n68a6606 ◽

2019 ◽

pp. 41-49

Author(s):

Kelley Moult

Keyword(s):

South Africa ◽

Asylum Seekers ◽

Birth Certificate ◽

Western Cape ◽

Dna Testing ◽

High Court ◽

Refugee Families ◽

The University ◽

Asylum Seekers And Refugees ◽

Legal Advisor

On 19 June 2019, one day before World Refugee Day, the Western Cape High Court handed down judgment in a case brought by the University of Cape Town’s Refugee Rights Unit on behalf of the Scalabrini Centre of Cape Town, which sought to improve the lives of thousands of asylum-seeking families across South Africa. The order, which was made after successful negotiations with the Department of Home Affairs (DHA/The Department) means that wives, husbands, children and other dependents of asylum-seekers and refugees are now able to document themselves in South Africa as ‘dependents’ of the principle asylum applicant in a process commonly known as ‘family-joining’. This aspect of the Refugee Act – outlined at section 3(c) – means that refugee families can be documented together, ensuring their rights to family unity and dignity in South Africa. The order confirms a set of Standard Operating Procedures (SOPs) that had been agreed on by the applicants and DHA. The SOPs allow for refugees to apply to be documented (either through family joining or on their own grounds) upon provision of certain documents, where possible, such as a marriage certificate or birth certificate or affidavit (in the absence of such documents) – regardless of where the marriage or birth took place. Family joining can now also be completed regardless of whether the dependents in question were included in the applicant’s original asylum application or not. The SOPs also provide for DNA testing as a measure of last resort to confirm the validity of parents’ claim over their child. These changes mean that asylum-seeking and refugee families can now fulfil their right to access documentation in South Africa. Kelley Moult spoke to Sally Gandar, the Head of Advocacy and Legal Advisor for the Scalabrini Centre, and Popo Mfubu, an attorney at the Refugee Rights Unit, about the ground-breaking case.

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