scholarly journals Homosexuality and the Law in Africa: South African Case Law as a Paradigmatic Example

2017 ◽  
pp. 291-312
Author(s):  
Elias Kifon Bongmba
Keyword(s):  
South African ◽  
Case Law ◽  
The Law

Protection of shareholders class rights in company law

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Anthony Nwafor
Keyword(s):  
South African ◽  
Case Law ◽  
Company Law ◽  
The South ◽  
Content Type ◽  
The Law ◽  
The Uk ◽  
Class Rights ◽  
A Company ◽  
Business Challenges

Purpose A company that is registered with share capital may issue different classes of shares and may confer rights on members, which place them in different classes in the company’s organisational structure. This paper is concerned with the propensity for encroachment on such vested class rights as companies strive to wriggle out of business challenges spawn by the COVID-19 pandemic. The purpose of this study is to ascertain the extent of protection that the law accords to the different classes of shareholders and members in a company especially when the company seeks to vary the vested class rights. Design/methodology/approach A doctrinal methodology, which relies on existing literature, case law and statutory instruments, is adopted to explore the nature of class rights and the adequacies of the remedial measures availed by statute to the aggrieved bearers of class rights in the context of the South African Companies Act 71 of 2008 with inferences drawn from the UK companies statute and case law. Findings The findings indicate that accessing the remedies available to aggrieved shareholders under the relevant statutory provisions are fraught with conditionality, which could make them elusive to those who may seek to rely on such provisions to vindicate any encroachment on their class rights. Practical implications The paper embodies cogent information on the interpretation and application of the relevant statutory provisions geared at the protection of shareholders class rights, which should serve as guides to companies and the courts in dealing with matters that affect the vested class rights of shareholders and members of a company. Originality/value The paper shows that protections offered to classes of shareholders under the law can also be extended to classes of members who are not necessarily shareholders, and that shareholders who seek to vindicate their class rights may conveniently rely on Section 163 that provides for unfair prejudice remedy to avoid the onerous conditions under Section 164 of the South African Companies Act 71 of 2008, which directly deals with class rights.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

2021 ◽  
Vol 33 (2) ◽  
pp. 238-259
Author(s):  
Chuks Okpaluba ◽  
Tumo Charles Maloka
Keyword(s):  
South African ◽  
Case Law ◽  
Rugby Union ◽  
Department Of Education ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
The Law ◽  
Bear Witness

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

“The Terrible Genius of Literature”: Reassessing Reconciliation in Nadine Gordimer’s The House Gun

2015 ◽  
Vol 14 (1) ◽  
pp. 100-120 ◽  
Author(s):  
Audrey J. Golden
Keyword(s):  
South African ◽  
Case Law ◽  
Law And Literature ◽  
Truth And Reconciliation Commission ◽  
Constitutional Court ◽  
The Novel ◽  
The South ◽  
Reconciliation Commission ◽  
Truth And Reconciliation ◽  
The Law

During the three years in which Gordimer drafted The House Gun (1998), she relied heavily on South African case law, international jurisprudence, and the discerning editorial eye of Nelson Mandela’s lawyer, George Bizos. As such, my reading of The House Gun brings new attention to the novel’s engagement with the reconciliatory efforts of the Truth and Reconciliation Commission and the juridical work of the South African Constitutional Court to redefine the terms of reconciliation in the country. Through language in a fictional courtroom, Gordimer’s novel turns the process of repair into one that is always immediate and ongoing. It shifts the primarily retributive focus of the law into a reparative and open-ended endeavor. Justice no longer is something that “is done,” Gordimer explains, but rather is a process equally conceived by law and literature. The novel depicts harm in terms of the interpersonal, spatial, and legal fractures it creates. In this way, it expresses reconciliation in the Commission’s language of bridging an injurious past with a present always open to healing.

Inequality, Victimhood, and Redress

2020 ◽  
Author(s):  
Rita Kesselring
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
South African ◽  
Human Life ◽  
Social Groups ◽  
Case Law ◽  
Federal Courts ◽  
Legal Norms ◽  
The Law ◽  
Do So

In relation to inequality, the law is ambivalent. Legal norms can be used to create or formalize differences in a society, but social groups can also use legal norms in their attempts to attenuate inequality. This contribution differentiates three ways in which law can affect structures of inequality: legislation, case law, and law enforcement, and law’s discursive forms and legal practices. It focuses on the latter, or what Bourdieu calls ‘the force of law’, at the level of lived reality. To do so, it examines the apartheid litigations where South African victims of human rights violations turned to U.S. federal courts to seek redress, and shows how, in that pursuit, new forms of inequalities were produced. As the law needs to valuate life, the evaluation of human life poses the danger of producing new disparities. Recourse to the law can, however, also be emancipatory for the injured. Both effects—emancipation from and cementation of inequalities—have societal rather than mere technical causes.

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

2021 ◽  
Vol 138 (4) ◽  
pp. 748-760
Author(s):  
Tjakie Naude
Keyword(s):  
Twentieth Century ◽  
Comparative Study ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Recent Case ◽  
The Internet ◽  
Electronic Contracts ◽  
The Law ◽  
Standard Terms

South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.

Family Formations in Contemporary South Africa: Does South African Marriage Law Protect Lived Realities?

2020 ◽  
Author(s):  
Fatima Osman
Keyword(s):  
South African ◽  
Ad Hoc ◽  
Nuclear Family ◽  
Case Law ◽  
Equal Treatment ◽  
Marriage Law ◽  
Legislative Framework ◽  
Opposite Sex ◽  
The Law ◽  
Do So

Abstract In the 21st century, families are constituted differently to the typical Western Judeo-Christian nuclear family comprising of a mother, father, and children. While some individuals may marry, others may choose not to do so or, at the other end of the spectrum, marry several individuals. This article critically examines whether South African marriage law adequately protects contemporary family formations. The examination reveals that unfortunately – but perhaps not unsurprisingly – the heteronormative nuclear family continues to be positioned as the baseline for the conferral of rights with opposite-sex civil marriages often receiving the greatest protection in South African law. Despite the legislative recognition of civil unions and customary marriages, the realisation of rights by individuals in these fringe groups is hindered by the creation of a complex legislative framework and practical difficulties encountered in the implementation of the law. Furthermore, notwithstanding years of legislative deliberation on the matter, unmarried partners and those in religious marriages enjoy only ad hoc protection through case law and piecemeal legislative provisions. While judicial activism in this arena may be lauded, the limited nature of judgments has led to continuous litigation for the realisation of rights. Statutory reform is thus required to ensure the equal treatment of all marriages, reconcile and simplify existing statutory law, address practical difficulties in the implementation of the law, and govern social reality.

Romans 8: Dead to the Law, Alive in the Spirit

2013 ◽  
Vol 9 ◽  
Author(s):  
Tyler Lohse
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Interpretive Theory ◽  
The Law ◽  
Interpretive Strategies ◽  
Civil Death ◽  
Romans 8

This essay comments on the nature of the language of the law and legal interpretation by exam- ining their effects on their recipients. Two forms of philosophy of law are examined, legal positiv- ism and teleological interpretive theory, which are then applied to their specific manifestations in literature and case law, both relating to antebellum slave law. In these cases, the slave sustains civil death under the law, permissible by means of these legal interpretive strategies.

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.

South African Animal Legislation and Marxist Philosophy of Law

Cultura ◽  
2019 ◽  
Vol 16 (1) ◽  
pp. 23-28
Author(s):  
Luis CORDEIRO-RODRIGUES
Keyword(s):  
South Africa ◽  
South African ◽  
Social Reality ◽  
Marxist Philosophy ◽  
Philosophy Of Law ◽  
Berlin Wall ◽  
Animal Farming ◽  
Animal Law ◽  
The Law ◽  
Farming Industry

Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.

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