Search

In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights. [ABSTRACT FROM AUTHOR]

Section 30P of the Pension Funds Act 24 of 1956 (hereafter PFA) is an important procedural tool that allows those dissatisfied with the Pension Funds Adjudicator's determinations to apply to the High Court for such determinations to be set aside. This article discusses this section and demonstrates that neither the legislature nor the courts have provided clarity on whether what is intended by this section is an appeal, a review or a reconsideration of determinations of the Pension Funds Adjudicator. It also illustrates the confusion that has been created by the courts with the High Court referring to this procedure as sui generis and the Supreme Court of Appeal, without referring to previous High Court decisions, referring to this procedure as an appeal in the wide sense. In this article a reflection on whether these two formulations are synonymous or if there is a need to settle for only one of them will be made. Furthermore, a call for judicial reconsideration of the applicability of the Plascon-Evan Rule in section 30P applications will be made in this article. [ABSTRACT FROM AUTHOR]

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy. [ABSTRACT FROM AUTHOR]

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate. [ABSTRACT FROM AUTHOR]

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children. [ABSTRACT FROM AUTHOR]

In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the genderdiscriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding genderdiscriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC. [ABSTRACT FROM AUTHOR]

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline. [ABSTRACT FROM AUTHOR]

The Supreme Court of Zimbabwe recently handed down a judgment on the determination of whether the law that governs testamentary dispositions of estates binds a testator to bequeath his or her share of property to the surviving spouse. This was an appeal case against the judgment of the High Court which had held that a testator is bound to leave his or her property to the surviving spouse. Albeit the fact that section 5(1) of the Wills Act establishes the doctrine of freedom of testation, section 5(3)(a) of the Wills Act prohibits a testator to execute a will that disinherits a surviving spouse. The provision has been interpreted inconsistently by the High Court for the past years. One category of judgments held that a testator could disinherit a surviving spouse based on freedom of testation and that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In contrast, the other set of dissenting judgments held that a will that disinherited a surviving spouse was invalid. Further, the courts held that the provisions of the Deceased Estates Succession Act, in particular section 3A which grants a surviving spouse the right to inherit the matrimonial home applies to testate succession. In overturning the High Court decision, the Supreme Court authoritatively held that section 5(3)(a) of the Wills Act could not be interpreted to mean that a surviving spouse cannot be disinherited in a will. The Court based its decision on the doctrine of freedom of testation entrenched in the Wills Act and the Constitution. The Supreme Court also conclusively held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In arguing her case in the Supreme Court, the surviving spouse among other arguments contended that section 26 of the Constitution of Zimbabwe provides for equality of rights of spouses and the protection of children and spouses upon the dissolution of marriage through death or divorce. The Supreme Court disapproved the previous High Court decisions which held that a will that disinherited a surviving spouse was invalid as it contravenes section 26 of the Constitution. The Court held that section 26 of the Zimbabwean Constitution is not directly enforceable, does not bestow rights on individuals and does not prohibit the disinheritance of a surviving spouse. The Court held that the provisions of section 26 are found under the National Objectives which are intended to guide the state in the formulation of laws relating to dissolution of marriage through death. In this article, I argue that the Supreme Court decisively answered the discordant questions on whether a surviving spouse can be disinherited through a will and whether the provisions of the Deceased Estates Succession Act apply to testamentary dispositions. However, the Court missed an opportunity to develop the Zimbabwean jurisprudence on the enforcement of National Objectives, in particular section 26 of the Constitution. [ABSTRACT FROM AUTHOR]

In December 2021 the Constitutional Court delivered judgment in Bwanya v Master of the High Court, Cape Town. The court ruled that survivors of life-partnerships "in which the partners undertook reciprocal duties of support" would be entitled to claim benefits under the Maintenance of Surviving Spouses Act (the MSSA) and the Intestate Succession Act (the ISA). This case note focusses on the phrase "in which the partners undertook reciprocal duties of support." It examines the jurisprudential development of the phrase through the case law. It considers whether reliance on the phrase is likely to present an obstacle to potential claimants or whether the phrase can be interpreted in a way that broadens the protection provided by the MSSA and ISA so as to ensure that all vulnerable partners can be protected. The note suggests that the optimal way in which to interpret the requirement that the life-partners had undertaken reciprocal duties of support would be to focus on the claimant's needs and financial dependence and to assess how the law can provide protection and redress to those who have incurred relationshipinduced dependence because of the particular form and nature of the reciprocal support provided in the intimate relationship. Previous court judgments have noted the typically gendered nature of the contributions made by family members. The law must ensure that it furthers the constitutional goal of achieving substantive equality between men and women, while also acknowledging and responding to the intersectional forms that discrimination and disadvantage assumes. [ABSTRACT FROM AUTHOR]

In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future. This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA. The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine. [ABSTRACT FROM AUTHOR]

Although South African courts have handed down progressive judgments concerning the right to access to adequate housing, they have failed failed to do so from a feminist point of view. The trajectory of housing jurisprudence emanated from a sequence of evictions that occurred in Cape Town and the Johannesburg inner city. This article provides an analysis of four pertinent cases, namely Grootboom, Olivia Road, Blue Moonlight and Dladla. A gendered perspective was absent from the arguments before the court and from the court's interrogation and analysis of matters that came before it. This failure was a shortcoming, given the harsh lived realities that affect women who experience eviction based on their race, gender and class. It is against the backdrop of the failures of Constitutional Court cases that lawyers use feminist litigation approaches and courts in housing adjudication. [ABSTRACT FROM AUTHOR]

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal. [ABSTRACT FROM AUTHOR]

This paper analyses the dominant approaches to statutory interpretation through a historical lens. It argues that for most of South Africa's history the methods of interpretation were twisted in order to give effect to the intentions of the legislature. This approach to interpretation has now been discarded into the waste bin of history, and intentionalism has been replaced with contextualism. Or so we are told. The judgment of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) has been hailed as the new, settled approach to interpretation, with the Constitutional Court endorsing Endumeni on numerous occasions. But it appears from both the judgments of the Constitutional Court and those of other Courts that intentionalism is not yet dead. This paper argues that the reason for this is because Endumeni has not provided clarity to the process of interpretation that it proclaims to do. [ABSTRACT FROM AUTHOR]

The article focuses on the creation of the Constitutional Court in 1994 in South Africa and its judgments from 1995 to 2012. Topics mentioned include the different reasons the Court rejected some of the cases during that time and invalidated others, its direct access, and the several applications for leave to appeal against judgments of the Supreme Court of Appeal and other different courts.