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.

scholarly journals 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 ◽  
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.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

2020 ◽  
Vol 33 (3) ◽  
pp. 617-645
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Personal Liberty ◽  
The Supreme Court ◽  
Present Part ◽  
Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

Removal of the National Director of Public Prosecution: A Critique of Emerging Constitutional Jurisprudence

2021 ◽  
Vol 35 (2) ◽  
Author(s):  
Mtendeweka Mhango
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Court Order ◽  
High Court ◽  
The Republic ◽  
South African Constitution ◽  
National Director ◽  
Constitutional Jurisprudence

In this article, I critically examine the constitutional provisions governing the removal of the National Director of Public Prosecutions. This examination is undertaken in the context of recent decisions by the High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23, which found certain provisions of the National Prosecuting Authority Act 32 of 1998, which governs the removal of the National Director, unconstitutional. The article is critical of these two court decisions for their failure to properly justify the order to invalidate the provisions of the National Prosecuting Authority Act and to provide a proper account of the different separation of powers imperatives involved in the cases. The article is also critical of the Constitutional Court’s approach to the abstract review of the sections in the National Prosecuting Authority Act, and of its suspension of the order of invalidity in a manner which took no due regard to established jurisprudence. Lastly, the article is critical of the Constitutional Court’s omission to address the High Court order that the Deputy President should appoint the National Director, which runs counter to the text of the Constitution.

scholarly journals IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Michael C Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Common Law ◽  
Constitutional Court ◽  
High Court ◽  
Personality Rights ◽  
The Common ◽  
The Republic ◽  
Made In

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

II Constitutional Jurisprudence, 5 Powers and Conflicts

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Constitutional Court ◽  
Reciprocal Relations ◽  
The Republic ◽  
Constitutional System ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Principal Lines

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.

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