scholarly journals ADMINISTRATIVE LAW — A TOOL FOR SOCIAL JUSTICE AND TRANSFORMATIVE CONSTITUTIONALISM: THE IMPLICATIONS OF MELANI V THE CITY OF JOHANNESBURG

2017 ◽  
Author(s):  
Nelsie Siboza
Keyword(s):  
South Africa ◽  
Social Justice ◽  
Administrative Law ◽  
Case Note ◽  
High Court ◽  
Legal Question ◽  
The Republic ◽  
The City

This case note will consider the decision of the High Court in the case Melani v City of Johannesburg.1 I ask whether the Court’s decision is in accordance with progressive substantive aspirations of the Constitution of the Republic of South Africa, 1996.2 In particular, I consider whether the Court’s decision was overly formalistic, whether it met with the requirements of transformative constitutionalism within the context of administrative law and whether the decision furthered social justice. I will start with a brief summary of the facts, the legal question and the decision of the Court in section 2. Section 3 will follow with a consideration of the notion of transformative constitutionalism regarding adjudication within the context of administrative law and social justice. An analysis of whether the Court did in fact further transformative constitutionalism will be discussed in section 4. Finally, I will conclude my discussion in section 5.

scholarly journals The Centrality of Customary Law in the Judicial Resolution of Disputes that Emanate from it – Dalisile v Mgoduka (5056/2018) [2018] ZAECMHC

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Common Law ◽  
Case Note ◽  
Customary Law ◽  
Legal Systems ◽  
Case Discussion ◽  
High Court ◽  
The Past ◽  
History Of ◽  
The Republic

The recent judgment by the Mthatha High Court in Dalisile v Mgoduka ((5056/2018) [2018] ZAECMHC (Dalisile)) has elicited much jubilation over the permeation of customary-law principles into the judicial resolution of disputes that emanate from a customary-law context. The judgment comes at a time when common-law principles appear to have infiltrated the resolution of disputes that originate from customary law. This case paves the way and provides a foundation for the resolution of customary-law disputes within their own context. It reinforces arguments that have long been canvassed to constitutionalise customary law within its own framework. It endorses the envisioned commitment to translate into reality the “healing of the divisions of the past” as envisaged in the preamble of the Constitution of the Republic of South Africa 1996. Section 211(3) of the Constitution is distinct and prescriptive on the obligations of the courts relating to the application of customary law. Section 211(3) is in the context of pursuing the advancement of a constitutionalised system of customary law that seeks to equate the applicable laws of the Republic.This case has filled a lacuna in the application and interpretation of customary law, which has been clouded by the prism of common law. The gap was acknowledged by the court in Alexkor Ltd v Richtersveld Community (2003 (12) BLCR 1301 (CC). In Alexkor, customary law was affirmed as an independent and legitimate source of law that is empowered to regulate its own affairs within the framework of the Constitution. It does not have to be legitimised and validated by common-law principles in addition to the Constitution.Resolving disputes arising from customary law has been a great cause for concern. The courts have delivered many disappointing judgments in the area of resolving customary-law disputes. These judgments appear to lean towards importing common-law principles into the resolution of disputes that arise from the system of customary law. This case note does not intend to discuss these judgments in any depth as they have been dealt with elsewhere.It is thus not the purpose of this case discussion to delve into the history of customary law. Its intended focus is limited to the significant stride made by the court in Dalisile in uprooting the dominance of the application of common-law principles in the resolution of disputes that arise from the system of customary law. The objective is to generate debate on the contribution that the judgment makes to the incorporation of Africanised principles into the broader constitutional framework of the jurisprudence of our courts. The note argues that it is the Constitution that is the dominant authority over all the legal systems that are applicable in the Republic, including customary law.

Drawing the Line between Dismissal for Alcoholism (Incapacity) and Dismissal for Drunkenness (Misconduct). Are the Boni Mores Compromised?

2018 ◽  
Vol 41 ◽  
pp. 57-63
Author(s):  
Thandekile Phulu
Keyword(s):  
South Africa ◽  
Economic Development ◽  
Social Justice ◽  
Occupational Health ◽  
Health And Safety ◽  
Occupational Health And Safety ◽  
Fundamental Rights ◽  
Labour Relations ◽  
Labour Practice ◽  
The Republic

In South Africa employees are protected by various pieces of legislation. Section 23 of the Constitution of the Republic of South Africa 1996 provides for a right to fair labour practice. In its preamble the Labour Relations Act 66 of 1995 (hereafter referred to as the LRA) states that the purpose of the Act is to advance economic development, social justice, labour peace and democratisation of the workplace. The LRA also states that one of its objectives is to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution. The Occupational Health and Safety Act as amended by the Occupational Health and Safety Amendment Act 181 of 1993 provides for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. The LRA provides for dismissal for incapacity and dismissals for misconduct. It also differentiates between the two. The LRA provides for both substantive and procedural fairness when dismissing an employee for incapacity and misconduct. This paper will examine the rationale behind differentiating between dismissal for drunkenness and dismissal for alcoholism.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

2021 ◽  
Vol 138 (1) ◽  
pp. 40-57
Author(s):  
Dusty-Lee Donnelly ◽  
Seshni Govindasamy
Keyword(s):  
Case Note ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
High Court ◽  
International Commercial Arbitration ◽  
The Republic ◽  
Model Law

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

scholarly journals THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Themba Maseko
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Note ◽  
Constitutional Court ◽  
National Assembly ◽  
High Court ◽  
The Rule Of Law ◽  
The Republic ◽  
The One ◽  
Do So

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.

scholarly journals CASE NOTE: Illegal sales of alcohol and asset forfeiture

2016 ◽  
Author(s):  
Karabo Ngidi
Keyword(s):  
South Africa ◽  
Organised Crime ◽  
Case Note ◽  
Constitutional Court ◽  
High Court ◽  
Legal Limit ◽  
Asset Forfeiture ◽  
National Director ◽  
Business As Usual ◽  
The Impact

The Constitutional Court recently confirmed an order for the forfeiture of a house from which an unlawful shebeen had been run for years (Van der Burg and Another v National Director of Public Prosecutions).In deciding whether to confirm the order of the full bench of  the High Court, Justice van der Westhuizen, writing for a unanimous court, addressed the following questions: whether the house was an instrumentality of an offence; whether the illegal sale of alcohol is an organised crime; the proportionality of the crime to the forfeiture under the Prevention of Organised Crime Act 121 of 1998 (the POCA); as well as the impact of the forfeiture on the rights of the children that lived in the house. This judgment comes at a time where issues such as the proposal for the reduction of the legal limit of alcohol for drivers to 0%2 are topical, and seems to point to a tougher stance towards the sale and consumption of alcohol in South Africa. The judgment may therefore be seen as a warning that the illegal sale of alcohol and running of a shebeen will no longer be seen as business as usual in cases where the seller does not heed the call to desist such business.

scholarly journals BACK TO THE FUTURE: A LESSON IN FAIRNESS AND RETROSPECTIVITY S v Acting Regional Magistrate, Boksburg: Venter and Another (CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Suhayfa Bhamjee
Keyword(s):  
South Africa ◽  
Criminal Law ◽  
Sexual Offences ◽  
High Court ◽  
The Future ◽  
The Republic

The purpose of any legislation is to safeguard the welfare of society. Any law that fails to do that cannot justify its existence. In S v Acting Regional Magistrate, Boksburg: Venter ((CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC)) the question of nullity of the particular wording of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007, hereinafter “the Act”) and its subsequent constitutionality, were in question. The court had to decide whether to confirm the ruling of the SouthGauteng High Court, Johannesburg (Case No A11/2010) that the particular wording of the section was inconsistent with the Constitution of the Republic of South Africa, 1996, or whether it could apply the various rules of interpretation and save the section from invalidity.

scholarly journals Rhodes University v Student Representative Council of Rhodes University: The constitutionality of interdicting non-violent disruptive protest

2017 ◽  
pp. 93-102
Author(s):  
Safura Abdool Karim ◽  
Catherine Kruyer
Keyword(s):  
South Africa ◽  
Eastern Cape ◽  
Student Protests ◽  
High Court ◽  
Chilling Effect ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

Section 17 of the Constitution of the Republic of South Africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the Regulation of Gatherings Act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. The recent student protests across South Africa have occasioned litigation seeking to interdict protest action, which the universities claim is unlawful. Overly broad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. In a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown, a final interdict was granted interdicting two individuals from, among other things, disrupting lectures and tutorials at Rhodes University and from inciting such disruption. In this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed, using Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141.

scholarly journals Municipal Instruments in Law for Cultural Heritage Protection: A Case Study of the City of Cape Town Metropolitan Municipality

2021 ◽  
Vol 24 ◽  
pp. 1-34
Author(s):  
Rochine Melandri Steenkamp
Keyword(s):  
South Africa ◽  
Resource Management ◽  
Local Government ◽  
Cultural Heritage ◽  
Cape Town ◽  
Policy Documents ◽  
Government Functions ◽  
The Republic ◽  
The City

This article questions the extent to which municipal bylaws aimed at cultural heritage resource management (CHRM) reflect the objectives of the Constitution of the Republic of South Africa, 1996 (the Constitution), national legislation and the discourse on cultural governance more broadly. In terms of Schedule 4A of the Constitution, the function of "cultural matters" is not an original power of local government.  It is a function assigned to the national and provincial spheres. Municipalities are assumed, however, to have a responsibility to execute aspects of this function that may be incidental to other typical local government functions. This view finds support in the interpretation of various rights in the Constitution (e.g. sections 15, 30, 31 and 24) as well as the heritage, environmental and local government framework legislation and policy documents of South Africa. The premise of this article is that cultural heritage resource management by way of instruments such as bylaws promotes the overarching objectives of local government, such as sustainable development, while also promoting the rights to culture, language and religion, amongst others. To expand on its theoretical basis, this article provides a critical assessment of the bylaws of the City of Cape Town Metropolitan Municipality

From the Campbell Case to a Recent Ruling of the Constitutional Court of South Africa: Is There Any Hope to Revive the Tribunal of the Southern African Development Community?

2020 ◽  
Vol 28 (Supplement) ◽  
pp. 110-137
Author(s):  
Francesca Mussi
Keyword(s):  
South Africa ◽  
International Relations ◽  
Legal Reasoning ◽  
Case Law ◽  
Constitutional Court ◽  
Present Contribution ◽  
Constitutional Development ◽  
High Court ◽  
Legal Structure ◽  
The Republic

This article provides a critical analysis of the judgments delivered by the Regional High Court of Pretoria in the case Law Society of South Africa et al. v. President of the Republic of South Africa, the Minister of Justice and Constitutional Development, the Minister of International Relations and Co-operation and the Constitutional Court of South Africa in Law Society of South Africa and Others v. President of the Republic of South Africa and Others in order to investigate to what extent they can contribute to discuss the revival of the SADC Tribunal with all its original powers. After providing an overview of the SADC Tribunal's legal structure and the judgment delivered in 2008 in the Mike Campbell v. Zimbabwe case, the present contribution will consider the legal reasoning of the Regional High Court of Pretoria and the Constitutional Court of South Africa respectively. It will also develop some considerations of the role played by civil society groups in other SADC member states.

Global Town to Town Relations: An Exploratory Study of the City of Tshwane in South Africa

2018 ◽  
Vol 9 (12) ◽  
pp. 1034-1041
Author(s):  
John Ntshaupe Molepo ◽  
Keyword(s):  
South Africa ◽  
Provincial Government ◽  
Research Approach ◽  
Governmental Organizations ◽  
Use Of Data ◽  
Non Governmental Organizations ◽  
Role Players ◽  
The Republic ◽  
The Impact ◽  
The City

The Constitution of the Republic of South Africa 1996 describes its government as national, provincial and local sphere which are distinctive, interdepend and interrelated. The national and provincial government, by legislative and other measures must support and strengthen the capacity of the municipalities (Local Government) to manage their affairs, to exercise power and to perform their functions. Towns across the world make relationships with other towns. International relation is a complex field, its practice and scope involves numerous role players whether in government or non-governmental organizations. City of Tshwane is like other towns which seek investment opportunities for its citizens. City of Tshwane has several relations with different countries. The paper seeks to examine the impact of the relations, whether they are beneficial for the city or not. For the purpose of this paper, the study used qualitative research approach. The views and opinions of the officials were directly and indirectly captured by means of interviews and observations. The study adopted the use of data triangulation approach.

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