Summary judgment — Quo vadis?

2021 ◽  
Vol 138 (1) ◽  
pp. 88-114
Author(s):  
Thino Bekker
Keyword(s):  
South African ◽  
Historical Development ◽  
Access To Justice ◽  
High Court ◽  
The Core ◽  
Golden Opportunity ◽  
Quo Vadis ◽  
The Right ◽  
Summary Judgment ◽  
Made In

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.

scholarly journals Analysing the Onus Issue in Dismissals Emanating from the Enforcement of Unilateral Changes to Conditions of Employment

2017 ◽  
Vol 14 (7) ◽  
pp. 146
Author(s):  
Riaz Ismail ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
South Africa ◽  
South African ◽  
Labour Relations ◽  
Appeal Court ◽  
The Core ◽  
The United Kingdom ◽  
Mutual Interest ◽  
Core Section ◽  
The Right ◽  
Conditions Of Employment

The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.

scholarly journals From Francis Coralie Mullin to Swaraj Abhiyan: Adding Multidimensionality to the Conditional Social Right to Food

2017 ◽  
Vol 6 (1) ◽  
pp. 21-40
Author(s):  
Saurabh Bhattacharjee
Keyword(s):  
Indian Subcontinent ◽  
Right To Food ◽  
The Core ◽  
Explicit Mention ◽  
State Obligations ◽  
History Of ◽  
Constitutional Right ◽  
The Right ◽  
The Impact ◽  
Made In

Global hunger is widely seen as one of the foremost threats to humanity. The Constitutionality of the Right to Food has been a long-standing debate within the Indian Subcontinent as there is no explicit mention of the said right. Through various judicial pronouncements over a relatively long period of time, the right to food has been construed to be constitutionally ingrained. This paper explores the history of the right to food as a fundamental right in India, as per the Constitution. It analyses landmark cases on the right to food and examines the fundamental right to food, in terms of state obligations. Is the impact of the entrenchment of the right to food as a fundamental right, limited only to its symbolic meaning? Or has such right substantively shaped the contours of governmental policies too? What are the remedial interventions that the judiciary has made in view of the constitutional right to food? These are questions that the paper will explore. In this process, the paper will parse various judicial orders on the right to food and identify whether there are justiciable entitlements that presumptively constitute the core of the right. Further, the paper shall also highlight the multidimensionality of the right to food and illustrate that starting with Francis Mullin in the 1980s, to Laxmi Mandal and Swaraj Abhiyan in this decade. The courts have, through the above mentioned judgments, underscored the interrelatedness between the rights to food, health, shelter and right to work.

scholarly journals DISPUTE RESOLUTION IN THE SOUTH AFRICAN SOCIAL SECURITY SYSTEM: THE NEED FOR MORE APPROPRIATE APPROACHES

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
MAT Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Successful Implementation ◽  
Legal Assistance ◽  
The Right ◽  
Resolution Processes ◽  
Social Security Beneficiaries

The right to social security in South Africa is adjudicated and enforced mainly by means of litigation. This article examines litigation as a mechanism for the resolution of social security disputes in South Africa and its impact on both the right to have access to court and to social security. It argues that court-based adjudication may not be the most appropriate means of adjudicating social security claims. This is particularly as South Africa is a country where social security beneficiaries have limited knowledge of the laws and procedures, coupled with a lack of publicly-provided legal assistance/representation for social security cases. Dispute resolution mainly through the courts may contribute to the limitation of their right to seek redress and by implication, their right to have access to social security. Finally, the article proposes the investigation of more appropriate dispute-resolution processes. This is due to the failure of court-based adjudication to ensure access to justice (and to social security); constitutional requirements arising from the protection of the rights of access to justice and to social security; the Constitution’s focus on protecting persons who are particularly vulnerable and desperate; the availability of other (more appropriate) dispute-resolution mechanisms; and the relatively successful implementation of these mechanisms in the resolution of social security disputes in comparative jurisdictions. 

scholarly journals Quo Vadis Banking Union? Discussions over the Resolution of Banks

2018 ◽  
Vol 1 (333) ◽  
Author(s):  
Klaudia Alicja Zielińska
Keyword(s):  
Banking Sector ◽  
Banking Union ◽  
International Level ◽  
Final Structure ◽  
The Core ◽  
Single Resolution Mechanism ◽  
Review Procedure ◽  
Quo Vadis ◽  
The Right ◽  
Core Issues

Transferring the right to make the decision concerning a bank’s resolution onto the international level has long been the bone of contention between the European Union’s Member States. The aim of this article is to provide a review of the discussions on this topic, while attempting to evaluate whether the consensus reached allows the achievement of goals set for the resolution mechanism. The article is composed of five parts. The first part introduces the concept of single supervision over the banking sector and explains the importance of having harmonised resolution rules. The second part discusses the process of reaching a consensus towards the establishment of the Single Resolution Mechanism. That part is followed by a description of the final structure agreed for the mechanism back in 2014. The fourth part outlines the review procedure of the established regulations currently under way. The final part of the article summarises the contents and attempts to identify the core issues that still need to be resolved in order to guarantee reliability of the second pillar of the banking union.

Quo Vadis, Performance History?

2004 ◽  
Vol 45 (2) ◽  
pp. 271-274 ◽  
Author(s):  
Richard Schechner
Keyword(s):  
New York ◽  
Papua New Guinea ◽  
Art History ◽  
New Guinea ◽  
Ancient Greek ◽  
Performance History ◽  
The Core ◽  
The Past ◽  
Quo Vadis ◽  
The Right

Frankly, I'm not much of a historian. That is, the past interests me mostly as grist for my theoretical mill. I am not nostalgic. I don't often trek through ruins—whether of stone, paintings, videotape, paper, library stacks, or my own many notebooks. Of course, I've done the right thing when it comes to this kind of activity. I have climbed the pyramids at Teotihuacan and in Mayan country, sat on stone benches of the Theatre of Dionysus in Athens and in Epidaurus (where I was tormented by some really awful productions of ancient Greek dramas), and visited the theatre museums of four continents. On the art-history front, I've gazed at more paintings and sculptings than I can readily organize in memory. But my strongest meetings with “history” have been at the cusp of the past and present—living events always already changing as they are (re)performed. This has been the core of my “anthropology-meets-theatre” work whether among the Yaquis of Arizona, at the Ramlila of Ramnagar in India, in the highlands of Papua–New Guinea, at Off-Off Broadway in New York, in the interior of China, and at very many other events in a wide variety of places.

scholarly journals STRENGTHENING LOCUS STANDI IN HUMAN RIGHTS LITIGATION IN ZIMBABWE: AN ANALYSIS OF THE PROVISIONS IN THE NEW ZIMBABWEAN CONSTITUTION

2016 ◽  
Vol 19 ◽  
pp. 1 ◽  
Author(s):  
Lovemore Chiduza ◽  
Paterson Nkosemntu Makiwane
Keyword(s):  
Human Rights ◽  
South African ◽  
Access To Justice ◽  
Public Interest Litigation ◽  
New Approach ◽  
Human Rights Protection ◽  
Locus Standi ◽  
Protection Of Human Rights ◽  
Enforcement Mechanisms ◽  
The Right

Zimbabweans have been both victims of and witnesses to serious human rights violations over the years.Though there is wide agreement and speculation that the state and its agencies are the perpetrators of these atrocities, they have largely remained unprosecuted and unpunished.Such impunity is inter alia the result of ineffective law enforcement mechanismsand institutions as well as the lack of capacity and legal knowledge of victims to approach the courts and seek redress. These factors negatively affected the protection of human rights and access to justice in Zimbabwe.Although the Lancaster House Constitution contained a Declaration of Rights, its enforcement mechanisms, particularly those relating to locus standi (legal standing), posed a great challenge to human rights litigation in Zimbabwe. This is so because the Lancaster House Constitution adopted the traditional common law approach to standing. Under this approach it was required that an individual must have a "personal, direct or substantial interest" in a matter in order to have standing. The Lancaster House Constitution failed to recognise the importance of broader rules of standing, which would accommodate public interest litigation, specifically for the purpose of protecting human rights. Contrary to this, the new Constitution of Zimbabwe (2013) broadens the rules of standing in order to enhance access to the courts. This paper analyses the new approach to standing under the new constitutional dispensation in Zimbabwe.To this end, the discussion commences with an elucidation of the concept of locus standi and its link to access to justice. This is followed by an analysis of locus standi under the Lancaster House Constitution. Since the new approach in Zimbabwe is greatly informed by the South African approach to locus standi, a brief analysis of standing in South Africa is made. The paper concludes with a discussion of the approach to locus standi under the new constitution with a view to demonstrating how the new approach is likely to impact on the right of access to justice and human rights protection.

scholarly journals Developing an Efficient and Effective Social Security Adjudication Framework in South Africa

2015 ◽  
Vol 1 (1) ◽  
pp. 59-89
Author(s):  
Mathias Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
Policy Framework ◽  
Access To Justice ◽  
Recent Reform ◽  
Guidelines And Standards ◽  
The Right

South Africa is currently developing an overarching policy framework for effi-cient and effective resolution of social security disputes as part of reforms towards the establishment of a comprehensive social security system. In the development of the policy, international and regional guidelines and standards on access to justice were instrumental as they are benchmarks on the scope and content of the right of access to courts for social security claimants and the State’s obligations in this regard. This article outlines some international guidelines and standards relevant to the realisation of access to justice for social security claimants; and their role in recent reform initiatives that have been undertaken to promote access to justice in the South African social security system.

scholarly journals Re-partnering as a Contingency Deduction in Claims for Loss of Support Comparing South African and Australian Law

2017 ◽  
Vol 10 (3) ◽  
pp. 121
Author(s):  
L Steynberg
Keyword(s):  
South African ◽  
Case Law ◽  
Traditional Concept ◽  
High Court ◽  
Future Events ◽  
Australian Case ◽  
Uncertain Future ◽  
Northern Territories ◽  
The Right ◽  
High Court Of Australia

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and ‘husband and wife’, the wider term ‘re-partnering’ is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the ‘standard’ adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent. 

Thoughts on the Future

2016 ◽  
Keyword(s):  
Public Interest ◽  
Safe Space ◽  
Freedom Of Information ◽  
Access To Justice ◽  
Bill Of Rights ◽  
High Court ◽  
The Public ◽  
The United Kingdom ◽  
Principle Of Proportionality ◽  
The Right

Chapter 26 calls for the structure of the 2000 Act to be simplified. All exemptions should be subject to the public interest test. Freedom of information should be dealt with in the same way as environmental information. Government departments’ need for a safe space to develop policy should be clarified. There should be no extension of the right of veto. All executive override certificates should be referred to the High Court, which should review such certificates, applying the principle of proportionality, and the Court’s decision should be final. Freedom of information should be properly funded: it is part of access to justice which is fundamental to democracy. The recommendations of David Anderson QC’s report ‘A Question of Trust’ should be implemented. In the cold light of day, it is difficult to see what a British Bill of Rights could achieve which would be of benefit to the United Kingdom.

Out-of-Country Voting: Learning from Practice

2021 ◽  
Author(s):  
Adhy Aman ◽  
Mette Bakken
Keyword(s):  
Country Of Origin ◽  
Voting Rights ◽  
The State ◽  
Political Rights ◽  
The Core ◽  
Key Issues ◽  
The Right ◽  
Democratic Elections ◽  
Made In

The right to cast a vote in democratic elections stands at the core of people’s political rights. However, for citizens residing abroad the issue is less straightforward. Should people that have made a choice to live in another country still have voting rights in their country of origin? If so, should the state be responsible for facilitating their vote from abroad—or should citizens simply have the option of returning to exercise their right? Countries embarking on introducing out-of-country voting (OCV) may benefit from the experiences made in countries where voting from abroad is available. This report presents practical examples from different countries and highlights key issues to be considered before introducing out-of-country voting measures.

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