While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.
虽然以种族为基础的法律已正式从南非的法律制度中取消，而且现在有各种补救措施，但殖民主义和种族隔离的后遗症仍然明显地存在于全国各地的空间不平等和缺乏获得住房的机会。与此密切相关的是非法占领和驱逐问题。1998年第19号《防止非法驱逐和非法占用土地法》旨在实施1996年《南非共和国宪法》第26(3)条，根据该法，禁止未经法院命令的驱逐。然而，在2019冠状病毒病期间，非法占领和驱逐急剧增加，特别是在没有法院命令的情况下。鉴于驱逐所造成的破坏性影响，以及它们给受COVID-19影响的人带来的更大风险，这一点极为令人担忧。为应对疫情，政府根据2002年第57号《灾害管理法》制定了各种法规和指导方针。这些条例对生活和权利的许多方面施加了各种限制，例如财产权和驱逐权，并包括初步暂停驱逐。这导致了与驱逐增加有关的进一步问题，即使有最初的暂停。因此，本案例说明旨在根据最近南非人权委员会诉开普敦市2021年2 SA 565 (WCC)一案的判决重新评估驱逐行为，该判决提出了许多与政府应对2019冠状病毒病期间驱逐行为有关的问题和关切。该说明特别调查了与驱逐有关的条例与在强制迁离下处理驱逐的办法有多大不同。然后，这篇文章转向了已占用和未占用建筑的问题——政府官员越来越多地利用这一区别来试图绕过法院命令的需要。最后，本说明将根据所讨论的各种问题提出建议。
{"title":"Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]","authors":"ZT Boggenpoel, S. Mahomedy","doi":"10.47348/slr/2021/i3a6","DOIUrl":"https://doi.org/10.47348/slr/2021/i3a6","url":null,"abstract":"While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125453249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.
{"title":"Termination of Muslim marriages in the South African legal context: Understanding the challenges","authors":"M. Osman-Hyder","doi":"10.47348/slr/2022/i2a5","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a5","url":null,"abstract":"Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123796110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.
M v M (10751/2000) [2020] ZAGPPHC 155(2020年3月20日)案(“M v M”)的新颖之处在于，它发现在南非法律中可以放弃不动产。它还发现，可以从案件的事实推断出放弃不动产共同所有权份额的必要意图，这一点也很新颖。过去关于不动产放弃的判例法总是不能认定放弃，因为必要的意图永远无法确立。这种做法与我们的法院不愿在没有明确意图的情况下推断放弃有价值财产的意图是一致的。本案例说明试图在法律框架下，根据公开原则，放弃土地所有权似乎是不可能的，以此来批评法院在M . v . M案中的判决。它还试图询问，法院是否有其他途径可以就法院面前的一系列事实达成无可否认的公正结果。
{"title":"Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]","authors":"R. Cramer","doi":"10.47348/slr/2022/i3a10","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a10","url":null,"abstract":"The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122786933","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although conceptual approaches to populism differ, there is a high degree of consensus that the ideological distinctiveness of populism lies in the unique way it constructs its core concept, the “people”. This article assesses the implications of populist understandings of the people for the constitutional endorsement of multi-party representative democracy. Regardless of its many manifestations, populism structures peoplehood around a distinct brand of ideologised popular sovereignty, in combination with another dominant host ideology, which, depending on the context, can be drawn from any of the main ideologies on the left‒right spectrum. This combination invariably produces an opposite “other”, an “anti-people”, as a necessary co-constituent of the populist people’s cohesion and identity. The homogenising and exclusionary construct of peoplehood associated with populism holds profound implications for multi-party representative government. It challenges the pluralist notion of multi-party representation by advocating for representation as the embodiment of a homogenous popular will instead. Representation as embodiment fosters extreme majoritarian attitudes and, as histories of populists-in-government have shown, tendencies towards authoritarianism. Populist conceptions of the people ultimately dispute core features of multi-party representative democracy, such as inclusive democratic citizenship, pluralist representation, oppositional political rights, the recognition of opposition parties as standing alternatives to incumbent governments, and accommodation and compromise as inclusionary democratic practice.
{"title":"Populist conceptions of the “people” and multi-party democracy","authors":"J. Pretorius","doi":"10.47348/slr/2022/i2a1","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a1","url":null,"abstract":"Although conceptual approaches to populism differ, there is a high degree of consensus that the ideological distinctiveness of populism lies in the unique way it constructs its core concept, the “people”. This article assesses the implications of populist understandings of the people for the constitutional endorsement of multi-party representative democracy. Regardless of its many manifestations, populism structures peoplehood around a distinct brand of ideologised popular sovereignty, in combination with another dominant host ideology, which, depending on the context, can be drawn from any of the main ideologies on the left‒right spectrum. This combination invariably produces an opposite “other”, an “anti-people”, as a necessary co-constituent of the populist people’s cohesion and identity. The homogenising and exclusionary construct of peoplehood associated with populism holds profound implications for multi-party representative government. It challenges the pluralist notion of multi-party representation by advocating for representation as the embodiment of a homogenous popular will instead. Representation as embodiment fosters extreme majoritarian attitudes and, as histories of populists-in-government have shown, tendencies towards authoritarianism. Populist conceptions of the people ultimately dispute core features of multi-party representative democracy, such as inclusive democratic citizenship, pluralist representation, oppositional political rights, the recognition of opposition parties as standing alternatives to incumbent governments, and accommodation and compromise as inclusionary democratic practice.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126906923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under Article 1 of the Maputo Protocol “women” are defined as “persons of the female gender”. Notwithstanding this definition, transgender women, persons whose gender is female but who were assigned male at birth, are yet to be recognised or protected under the Protocol. On the contrary, on the African continent, transgender women are some of the most vulnerable persons in society. Due to their frequent misidentification as homosexual men, and widespread criminalisation of homosexuality, these women are regularly discriminated against and victims of stigma and violence. Furthermore, because of the denial of their gender identities, these women are deprived of their legal recognition and subsequent protection of their human rights. This article considers discrimination against transgender women and contrasts it with the provisions of the Maputo Protocol. This article utilises the teleological approach to treaty interpretation, together with postmodern intersectional feminist legal theory and queer legal theory as well as fundamental principles of international human rights law such as dignity, equality and non-discrimination. Finally, the article considers the recognition and protection of transgender women in light of the proposed SADC GBV Model Law.
{"title":"Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law","authors":"T. Snyman, Annika Rudman","doi":"10.47348/slr/2022/i1a3","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a3","url":null,"abstract":"Under Article 1 of the Maputo Protocol “women” are defined as “persons of the female gender”. Notwithstanding this definition, transgender women, persons whose gender is female but who were assigned male at birth, are yet to be recognised or protected under the Protocol. On the contrary, on the African continent, transgender women are some of the most vulnerable persons in society. Due to their frequent misidentification as homosexual men, and widespread criminalisation of homosexuality, these women are regularly discriminated against and victims of stigma and violence. Furthermore, because of the denial of their gender identities, these women are deprived of their legal recognition and subsequent protection of their human rights. This article considers discrimination against transgender women and contrasts it with the provisions of the Maputo Protocol. This article utilises the teleological approach to treaty interpretation, together with postmodern intersectional feminist legal theory and queer legal theory as well as fundamental principles of international human rights law such as dignity, equality and non-discrimination. Finally, the article considers the recognition and protection of transgender women in light of the proposed SADC GBV Model Law.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127019832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is becoming increasingly apparent that children are disproportionately vulnerable to environmental harm, taking into account their physical, physiological and developmental characteristics. Environmental degradation threatens children’s enjoyment of fundamental rights and freedoms, such as the right to a clean and healthy environment, the right to life, the right to health, the right to the highest attainable standard of living, and the right to dignity. This article evaluates the extent to which the South African legal framework protects the environment-related rights and interests of children. In order to achieve this objective, the article outlines the body of international and African regional human rights law and the environmental law and policy that protects and promotes the environment-related rights and interests of children. The contribution also discusses the mechanisms for redress at the international, regional and national levels in the event of environmental harm to the rights and interests of children. The body of international and African regional law sets the expectations and normative benchmarks to measure the compliance of the national (South African) legal and policy framework.
{"title":"The Protection of the Environmental Rights and Interests of Children: A South African Perspective","authors":"Rongedzayi Fambasayi","doi":"10.47348/slr/2021/i3a2","DOIUrl":"https://doi.org/10.47348/slr/2021/i3a2","url":null,"abstract":"It is becoming increasingly apparent that children are disproportionately vulnerable to environmental harm, taking into account their physical, physiological and developmental characteristics. Environmental degradation threatens children’s enjoyment of fundamental rights and freedoms, such as the right to a clean and healthy environment, the right to life, the right to health, the right to the highest attainable standard of living, and the right to dignity. This article evaluates the extent to which the South African legal framework protects the environment-related rights and interests of children. In order to achieve this objective, the article outlines the body of international and African regional human rights law and the environmental law and policy that protects and promotes the environment-related rights and interests of children. The contribution also discusses the mechanisms for redress at the international, regional and national levels in the event of environmental harm to the rights and interests of children. The body of international and African regional law sets the expectations and normative benchmarks to measure the compliance of the national (South African) legal and policy framework.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115436213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.
{"title":"A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis","authors":"W. Iheme, U Sanford","doi":"10.47348/slr/2021/i2a7","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a7","url":null,"abstract":"The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128802514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.
{"title":"Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing","authors":"Alina Starosta","doi":"10.47348/slr/2022/i2a6","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a6","url":null,"abstract":"Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122589585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.
{"title":"Making and disputing jeopardy assessments: An administrative law perspective","authors":"S. D. de Lange","doi":"10.47348/slr/2022/i2a3","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a3","url":null,"abstract":"The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129352263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.
{"title":"The Social and Ethics Committee and the Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?","authors":"Tangeni Nanyemba, Mikovhe Maphiri","doi":"10.47348/slr/2022/i3a2","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a2","url":null,"abstract":"Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133605398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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