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.

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.

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.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Regspraak: Novasie en delegasie van skuld – hoe raak dit die versekering van die tersake skuld?

2021 ◽  
Vol 2021 (2) ◽  
pp. 356-378
Author(s):  
JC Sonnekus ◽  
EC Schlemmer
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Secured Debt ◽  
Personal Rights ◽  
The Supreme Court ◽  
Preferential Position ◽  
The Creation ◽  
D 20 ◽  
Court Of Appeal ◽  
Secured Creditors

Personal rights may be transferred by means of cession, and, in such an instance, the cedent (creditor) does not need the debtor’s permission, but once the debtor has been informed, the debt is redeemed only if he performs against the cessionary. If however, someone owes a debt, he (the debtor) can free himself of the obligation only if he redeems the debt, if he is released, or through the running of prescription. But sometimes it might be necessary that a restructuring of someone’s debts takes place or the debtor may want to be replaced with someone else who is willing to take over his obligation. This can be done only with the cooperation and agreement of the creditor. In such a case the debtor delegates his obligation to another person, who then becomes the new debtor of a new debt – the creditor relinquishes his right against the old debtor and accepts the new debtor and the new debt. The old debt no longer exists. It is also possible to rearrange the debt and create a new obligation which extinguishes the old debt – a novation takes place. This contribution starts with a discussion of these general principles and particularly the role that they (should) play when one is dealing with a secured debt which the debtor wants to delegate or when novation comes into play. This leads into a discussion of Wilke NO v Griekwaland Wes Korporatief Ltd (1327/2019) 2020 ZASCA 182 (23 Dec 2020) and the judgments in the earlier courts in which the supreme court of appeal and the other courts did not consider the implications of delegation and novation on an underlying debt when that debt was secured. Delegation and novation extinguish the underlying debt and any security right fortifying that debt is thereby also extinguished because of the principle of accessority. If the creditor requires the new debt to be secured, a new security right needs to be established by meeting all the requirements for the establishment of such security whether it is a right of suretyship or a real security right. A creditor must carefully consider agreeing to a delegation or novation of a secured debt since the implication is that he loses his secured and preferential position, and, even with the creation of a new security right, he loses the ranking he initially held in the line of secured creditors when a right of mortgage, for example, is at stake – qui prior est tempore potior est iure (D 20 4 11pr).

scholarly journals LAWSUIT IN ADMINISTRATIVE COURT AFTER ADMINISTRATIVE PROCEEDINGS BASED ON PERMA NO. 6 OF 2018

2019 ◽  
Vol 8 (3) ◽  
pp. 458
Author(s):  
Muhammad Adiguna Bimasakti
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Government Administration ◽  
The Supreme Court ◽  
Administrative Proceedings

The enactment of Law No. 30 of 2014 concerning Government Administration very much changes the paradigm of the proceedings in the State Administrative Court. One of the fundamental things is about administrative proceedings as pre-litigation proceedings. Under Article 75 of Law No. 30 of 2014 concerning Government Administration, citizens who feel disadvantaged by a Government’s Decision or Action can file an administrative proceedings, and then file a lawsuit in the Administrative Court. Regarding this regulation, two interpretations arise regarding the obligation of administrative proceedings as pre-litigation proceedings. One party argues that the administrative proceedings as pre-litigation proceedings must be carried out before filing a lawsuit in the Court, and the other argues this is not mandatory. For a period of four years, the interpretation of the obligation of administrative proceedings as a pre-litigation proceedings in Law No. 30 of 2014 concerning Government Administration is floating in the realm of discourse. It was only on December 4th, 2018 that the Supreme Court issued a Supreme Court Regulation (PERMA) No. 6 of 2018 concerning Guidelines for Resolving Disputes Regarding Government Administration After Administrative Proceedings, finally the Supreme Court dictates that administrative proceedings as a pre-litigation proceedings is a must. However, the PERMA does not regulate fundamental things regarding lawsuit after administrative proceedings, namely, who will be seated as the defendant, and what is the object of the lawsuit. In addition, there are also a number of things that needed to be reviewed regarding the arrangements in the PERMA, such as regarding the deadline for a lawsuit in the Court.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

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 UNTANGLING THE REQUIREMENT OF GOOD FAITH IN THE DERIVATIVE ACTION IN COMPANY LAW (Part 1)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Maleka Femida Cassim
Keyword(s):  
Company Law ◽  
Good Faith ◽  
The Other ◽  
Comparative Approach ◽  
Complex Issue ◽  
High Court ◽  
Legal Principle ◽  
The Supreme Court ◽  
Court Of Appeal

A crucial prerequisite for a derivative action is that the applicant must be acting in good faith in terms of section 165(5)(b)(i) of the Companies Act 71 of 2008 in order to obtain the leave of the court to bring the proposed derivative action. Both the Supreme Court of Appeal and the High Court have recently made important pronouncements of legal principle on the approach that the courts would take to the determination of good faith for the purposes of the statutory derivative action under section 165 of the Companies Act. These judicial findings relate not only to the complex issue of how to prove good faith but also to the meaning and content of the requirement of good faith. The courts have now reached a crossroads in delineating the content of good faith and how it is to be proved. This two-part series of articles critically evaluates these judicial pronouncements. While the focus of these articles is mainly on the tangled requirement of good faith, relevant judicial findings on the other prerequisites for a derivative action under section 165(5)(b) read with (7) and (8) of the Companies Act are also discussed. A comparative approach is adopted that takes into account the jurisprudence developed in Australia, Canada and Singapore. This article, the first in the series of two articles, focuses on the test of good faith. The proof of good faith will be discussed in the second article.

The Reckoning

2021 ◽  
pp. 483-520
Author(s):  
Eric Van Young
Keyword(s):  
Supreme Court ◽  
Mexico City ◽  
The State ◽  
The Other ◽  
Grand Jury ◽  
The Supreme Court ◽  
The Government ◽  
The U.S

Alamán’s internal self-exile in Mexico City, when he hid for nearly two years only to emerge in 1834, is discussed in as much detail as is possible for a largely undocumented episode. Having left the government along with the other ministers during 1832, he was being pursued by agents of the state and political enemies to stand trial before a congressional grand jury for his involvement in the judicial murder of Vicente Guerrero. The chapter also discusses his cordial relationship with the U.S. envoy who replaced the recalled Joel Poinsett, Anthony Butler. The fall of the Anastasio Bustamante government to an uprising led by Santa Anna is narrated, along with Alamán’s eventual trial, his spirited defense of himself, the intervention of Carlos María de Bustamante (not the president) on his behalf before the Supreme Court, and the ex-minister’s exoneration at the hands of President Santa Anna.

Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

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