{"title":"Book Review: Paul O’Connell & Umut Özsu (eds) Research Handbook on Law and Marxism (2021)","authors":"D. M. Davis","doi":"10.47348/salj/v140/i1a9","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823650","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}
This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.
{"title":"Dolus eventualis: An endangered colonial species","authors":"T. Mosaka","doi":"10.47348/salj/v140/i2a1","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a1","url":null,"abstract":"This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823723","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}
{"title":"Book Review: Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021)","authors":"Mohamed Paleker","doi":"10.47348/salj/v140/i4a9","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447230","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}
Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.
{"title":"Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade","authors":"Andreas Coutsoudis","doi":"10.47348/salj/v140/i1a4","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a4","url":null,"abstract":"Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823733","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}
This article foregrounds the interplay between property and access from the perspective of those on the margins of property law, focusing specifically on women. The aim is to identify several instances where women are still in vulnerable positions despite a constitutional and/or legislative framework that purports to be progressive regarding gender equality and advancing women’s land rights. The article challenges the belief that individual wins in some court judgments are enough to proclaim the strengthening of women’s land rights. In this respect, it is important to consider whether a picture emerges that moves women away from the periphery towards the centre of property law.
{"title":"Property and access: Inequality of land relations and the continued vulnerability of women","authors":"Z. T. Boggenpoel","doi":"10.47348/salj/v140/i2a6","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a6","url":null,"abstract":"This article foregrounds the interplay between property and access from the perspective of those on the margins of property law, focusing specifically on women. The aim is to identify several instances where women are still in vulnerable positions despite a constitutional and/or legislative framework that purports to be progressive regarding gender equality and advancing women’s land rights. The article challenges the belief that individual wins in some court judgments are enough to proclaim the strengthening of women’s land rights. In this respect, it is important to consider whether a picture emerges that moves women away from the periphery towards the centre of property law.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824141","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}
Pub Date : 2023-01-01DOI: 10.47348/salj/v140/i4a10
Jaco Barnard-Naudé
None
{"title":"Book Review: André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022)","authors":"Jaco Barnard-Naudé","doi":"10.47348/salj/v140/i4a10","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447017","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}
In light of the widespread loss and endangered future of indigenous knowledge, there is a need to preserve traditional practices, values and rules relating to the dependant’s action for loss of support in African customary law (‘ACL’). Literature on the dependant’s action generally fails to mention the presence or absence of traditional practices relating to the dependant’s action for loss of support in ACL. Instead, existing research focuses almost exclusively on Western common law despite South Africa being a pluralistic society. This scholarly literature gap may encourage the standard view or tacit belief that traditional values applying to the dependant’s action do not exist in ACL. This article documents these traditional values in our legal system, thereby contributing to ongoing intellectual and political debates about protecting indigenous knowledge and cultural practices. The article discusses the dependant’s action for loss of support from an African perspective and compares it to the Western perspective. The effectiveness of traditional rules in the assessment of compensation is evaluated. The article proposes that the knowledge, understanding and integration of traditional values could result in the development of a single dependant’s action tailored to satisfy different cultures and beliefs and applies fairly and consistently to all.
{"title":"Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’","authors":"Matshilane Mokotong","doi":"10.47348/salj/v140/i4a7","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a7","url":null,"abstract":"In light of the widespread loss and endangered future of indigenous knowledge, there is a need to preserve traditional practices, values and rules relating to the dependant’s action for loss of support in African customary law (‘ACL’). Literature on the dependant’s action generally fails to mention the presence or absence of traditional practices relating to the dependant’s action for loss of support in ACL. Instead, existing research focuses almost exclusively on Western common law despite South Africa being a pluralistic society. This scholarly literature gap may encourage the standard view or tacit belief that traditional values applying to the dependant’s action do not exist in ACL. This article documents these traditional values in our legal system, thereby contributing to ongoing intellectual and political debates about protecting indigenous knowledge and cultural practices. The article discusses the dependant’s action for loss of support from an African perspective and compares it to the Western perspective. The effectiveness of traditional rules in the assessment of compensation is evaluated. The article proposes that the knowledge, understanding and integration of traditional values could result in the development of a single dependant’s action tailored to satisfy different cultures and beliefs and applies fairly and consistently to all.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447018","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}
In this note, I argue that PAF v SCF 2022 (6) SA 162 (SCA) is a groundbreaking judgment for curbing the abuse of the trust form by spouses who are married out of community of property and who engage in unscrupulous ‘divorce planning’ aimed at manipulating their personal estate values for the purposes of dividing matrimonial property at divorce. PAF not only removes several uncertainties regarding our courts’ ability to pierce the veneer of an abused trust but also broadens our conventional understanding of what trust-form abuse entails in the divorce setting, particularly by virtue of its engagement with the SCA’s earlier (prescient) judgment in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA). In the process, I argue that there is a need to reconsider the test formulated in REM v VM 2017 (3) SA 371 (SCA) for taking the asset value of an alter-ego trust into account for accrual claims at divorce. I further assert that the new paradigm PAF ushers in requires formulating a consolidated test that takes into account this reconsideration, as well as the novel factual matrix in PAF. I conclude that this consolidated test is not only capable of being applied in the context of accrual liability, but also where a spouse is eligible to seek a redistribution order in terms of s 7 of the Divorce Act.
在这篇文章中，我认为PAF v SCF 2022 (6) SA 162 (SCA)是一项开创性的判决，旨在遏制在财产共同之外结婚的配偶滥用信托表格，并从事不道德的“离婚计划”，旨在操纵他们的个人遗产价值，以便在离婚时分割婚姻财产。PAF不仅消除了我们的法院穿透滥用信托的能力的几个不确定性，而且还扩大了我们对离婚环境中信任形式滥用的传统理解，特别是由于它与最高法院早前(有先见之明的)Badenhorst诉Badenhorst 2006 (2) SA 255 (SCA)的判决有关。在此过程中，我认为有必要重新考虑REM v VM 2017 (3) SA 371 (SCA)中制定的测试，该测试将另一个自我信托的资产价值考虑到离婚时的应计索赔。我进一步断言，PAF引入的新范式需要制定一个综合测试，考虑到这种重新考虑，以及PAF中新的事实矩阵。我的结论是，这种综合检验不仅能够适用于应计责任，而且也适用于配偶有资格根据《离婚法》第7条寻求再分配令的情况。
{"title":"Notes: Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce","authors":"Bradley S Smith","doi":"10.47348/salj/v140/i4a1","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a1","url":null,"abstract":"In this note, I argue that PAF v SCF 2022 (6) SA 162 (SCA) is a groundbreaking judgment for curbing the abuse of the trust form by spouses who are married out of community of property and who engage in unscrupulous ‘divorce planning’ aimed at manipulating their personal estate values for the purposes of dividing matrimonial property at divorce. PAF not only removes several uncertainties regarding our courts’ ability to pierce the veneer of an abused trust but also broadens our conventional understanding of what trust-form abuse entails in the divorce setting, particularly by virtue of its engagement with the SCA’s earlier (prescient) judgment in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA). In the process, I argue that there is a need to reconsider the test formulated in REM v VM 2017 (3) SA 371 (SCA) for taking the asset value of an alter-ego trust into account for accrual claims at divorce. I further assert that the new paradigm PAF ushers in requires formulating a consolidated test that takes into account this reconsideration, as well as the novel factual matrix in PAF. I conclude that this consolidated test is not only capable of being applied in the context of accrual liability, but also where a spouse is eligible to seek a redistribution order in terms of s 7 of the Divorce Act.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447223","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}
Pub Date : 2023-01-01DOI: 10.47348/salj/v140/i1a10
G. Lubbe
None
没有一个
{"title":"Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)","authors":"G. Lubbe","doi":"10.47348/salj/v140/i1a10","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823560","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}
South Africa’s Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through ‘co-operative government’ and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and national government to intervene in local government affairs to secure effective government and oversight. These powers of intervention, justified by reference to s 139 of the Constitution, range from disciplining errant councillors to the forced dissolution of non-performing municipalities. Some welcome such intervention as a counterweight to local-level corruption and inefficiency, but in a partisan environment, especially where different spheres are controlled by different parties or coalitions accountable to distinctive electorates, these powers of intervention are, we argue, open to political abuse. This abuse is likely to become more prevalent as unstable local coalition governments become more common, providing more pretexts for intervention and opportunities for councillors in political minorities to subvert their own councils in the hope of inviting intervention by higher-tier actors associated with their own party. In line with the 2021 Constitutional Court case censuring the dissolution of Tshwane Municipality by the Gauteng government, we argue for restricting grounds for intervention, especially more radical forms of intervention. As far as possible, the task of removing corrupt and inefficient local councils and councillors should be left to local voters.
{"title":"Intervention in South African municipalities: Dangers and remedies","authors":"V. Bronstein, Daryl J. Glaser","doi":"10.47348/salj/v140/i1a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a5","url":null,"abstract":"South Africa’s Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through ‘co-operative government’ and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and national government to intervene in local government affairs to secure effective government and oversight. These powers of intervention, justified by reference to s 139 of the Constitution, range from disciplining errant councillors to the forced dissolution of non-performing municipalities. Some welcome such intervention as a counterweight to local-level corruption and inefficiency, but in a partisan environment, especially where different spheres are controlled by different parties or coalitions accountable to distinctive electorates, these powers of intervention are, we argue, open to political abuse. This abuse is likely to become more prevalent as unstable local coalition governments become more common, providing more pretexts for intervention and opportunities for councillors in political minorities to subvert their own councils in the hope of inviting intervention by higher-tier actors associated with their own party. In line with the 2021 Constitutional Court case censuring the dissolution of Tshwane Municipality by the Gauteng government, we argue for restricting grounds for intervention, especially more radical forms of intervention. As far as possible, the task of removing corrupt and inefficient local councils and councillors should be left to local voters.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823754","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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