Cultural vulnerability and judicial recognition of heterosexual life-partnerships in South Africa

by | Oct 14, 2023 | ACTA, ACTA 2023

Cultural vulnerability and judicial recognition of heterosexual life-partnerships in South Africa

Author Christa Rautenbach

ISSN: 1996-2088
Affiliations: BIuris LLB LLM LLD; Professor, Faculty of Law, North-West University (Potchefstroom Campus)
Source: Acta Juridica, 2023, p. 99 – 126
https://doi.org/10.47348/ACTA/2023/a5

Abstract

This article examines the potential role of cultural vulnerability in matters where heterosexual life partners claim the same spousal benefits under the Maintenance of Surviving Spouses Act 27 of 1990 and the Intestate Succession Act 81 of 1987. The discussion focuses on the differences and commonalities between two judgments, Volks v Robinson 2005 (5) BCLR 446 (CC) and Bwanya v The Master 2021 (1) SA 138 (WCC). By comparing the two cases, I speculate that the outcome differs considerably because of the cultural vulnerability of one of the partners in the latter judgment. The inescapable fact is that women, particularly black women, are most vulnerable to the adverse effects of the [non]-recognition of domestic partnerships.1 Sepedi: Sengwalwa se se lekola kgonagalo ya gore khuetšo ya setšo e ka ba e ama dikahlolo, fao molekani yo mongwe magareng ga balekani ba go fapana ka bong bao ba dutšego mmogo nako ye telele ba se ba nyalana, a dirago kleimi ya setlwaedi ya dikholego tša molekane wa mohu ka tlase ga Molao wa Tlhokomelo ya Balekani bao ba Phologilego wa 27 wa 1990 le Molao wa Kabelo ya Bajalefa Dithoto ge Mohu a se a Ngwala Wili wa 81 wa 1987. Poledišano ye e šeditše diphapano le ditshwano magareng ga dikahlolo tše tše pedi, ya Volks v Robinson 2005 (5) BCLR 446 (CC) le ya Bwanya v The Master 2021 (1) SA 138 (WCC). Ge ke bapetša melato ye ye mebedi, ke naganela gore dipoelo di fapana ka lebaka la khuetšo yeo setšo se bilego le yona, yeo e gateletšego yo mongwe magareng ga balekani kahlolong ya molato wa bobedi. Nnete yeo re ka se e tšhabelego ke gore basadi, kudukudu basadi ba baso, bontši bja bona ba kotsing ya ditlamorago tša go se kgahliše tša go hlolwa ke go se lemogwe ga dikamano tša balekani ba go dula mmogo nako ye telele ba se ba nyalana.

What are the implications of Bwanya v The Master of the High Court for customary law?

by | Oct 14, 2023 | ACTA, ACTA 2023

What are the implications of Bwanya v The Master of the High Court for customary law?

Author Julia Sloth-Nielsen

ISSN: 1996-2088
Affiliations: BA LLB LLM LLD, Emeritus professor, University of the Western Cape and Professor, University of Huddersfield
Source: Acta Juridica, 2023, p. 127 – 151
https://doi.org/10.47348/ACTA/2023/a6

Abstract

This contribution examines the implications of Bwanya v The Master of the High Court for customary unions in South Africa. Bwanya ruled that the Intestate Succession Act and the Maintenance of Surviving Spouses Act were unconstitutional to the extent that they failed to include heterosexual life partners as beneficiaries falling within their remit, which violated their right to equality and to dignity. The extent to which life partners’ positions may henceforth be ameliorated by legislative reform is first examined against the backdrop of the Domestic Partnerships Bill of 2008, which did not muster support in Parliament. Thereafter, the article discusses what implications the recognition of life partnerships may hold for customary law unions. It is tentatively concluded that it may be that whilst customary unions may continue as a social practice, it may be questioned whether in future there is legal space for them to persist in their current form. Sesotho: Atekele ena e hlahloba ditlamorao tsa Bwanya v The Master of the High Court bakeng sa manyalo a setso Afrika Borwa. Bwanya o ile a diha kahlolo ka hore Intestate Succession Act le Maintenance of Surviving Spouse Act e ne e se molaong ho ya kamoo e ileng ya hloleha ho kenyeletsa balekane ba bong bo fapaneng ba phelang mmoho e le bajamafa ba welang boikarabelong ba bona, e leng se ileng sa hatakela tokelo ya bona ya tekano le seriti. Ho ya kamoo maemo a balekane ba phelang mmoho a ka matlafatswang ho ya pele ka ntjhafatso ya molao ho qala ho hlahlojwa ho itshetlehilwe ka Domestic Partnership Bill ya 2008, e ileng ya se fumane tshehetso ka Palamenteng. Kamora moo, atekele e ile ya tshohla hore ke ditlamorao dife tse ka bang teng tsa ho lemoha dilekane tsa ho phela mmoho bakeng sa manyalo a setso. Ho nkuwa qeto ka lesisitheho hore leha manyalo a setso a ka nna a tswela pele jwalo ka tlwaelo setjhabeng, ho ka nna ha ba le dipotso hore ebe nako e tlang ho na le sebaka sa ona molaong hore a nne a tswele pele ka tsela eo a ntseng a etsa nakong ya jwale.

Gender equality in customary marriages: Is the deregulation of customary marriages the solution?

by | Oct 14, 2023 | ACTA, ACTA 2023

Gender equality in customary marriages: Is the deregulation of customary marriages the solution?

Author Pieter Bakker

ISSN: 1996-2088
Affiliations: BLC LLB LLD (UP); Professor, University of South Africa
Source: Acta Juridica, 2023, p. 152 – 185
https://doi.org/10.47348/ACTA/2023/a7

Abstract

Although the Recognition of Customary Marriages Act 120 of 1998 (RCMA) contains provisions to ensure equality between the spouses in a customary marriage, the RCMA has serious deficiencies that are detrimental to the weaker party in customary marriages. To rectify the deficiencies in customary marriages and other relationships, the South African Law Reform Commission (SALRC) and the Department of Home Affairs (DHA) are conducting simultaneous investigations into South African marriage law. This article critically discusses the proposals of the SALRC and the DHA to determine whether the proposed legislation will address the current deficiencies in the RCMA. As an alternative to the proposals of the SALRC and the DHA, the deregulation of customary marriages is advanced as a solution to the inequitable position of spouses in customary marriages under the RCMA. isiNdebele: Nanyana umThetho wokwAmukela imiTjhado yesiNtu we-120 ka-1998 (Recognition of Customary Marriages Act (RCMA)) umumethe iindinyana zokuqinisekisa ukulingana phakathi kwabalingani emtjhadweni wesintu, i-RCMA inokutlhayela okukhulu okulimaza ihlangothi elibuthakathaka emitjhadweni yesintu. Ukulungisa ukutlhayela lokho emitjhadweni yesintu kanye nobunye ubudlelwano, iKomitjhini yokuBuyekezwa kwemiThetho yeSewula Africa (South African Law Reform Commission (SALRC)) kanye nomNyango wezangeKhaya (Department of Home Affairs (DHA)) benza iphenyo ngesikhathi sinye mayelana nomthetho wemitjhado weSewula Afrika. I-atikili le ihlathuthula kabanzi ngeemphakamiso ze-SALRC ne-DHA kobana kuthathwe isiqunto sokobana ingabe umthetho ohlongozwako uzokuqalana nokutlhayela kwagadesi okuku-RCMA. Njengenye indlela yeemphakamiso ze-SALRC ne- DHA, ukuqedwa kwemithetho yemitjhado yesintu kuthuthukiswe njengesisombululo sobujamo bokungalingani kwabalingani emitjhadweni yesintu ngaphasi kwe-RCMA.

The Reform of Customary Law of Succession Act in contemporary South Africa

by | Oct 14, 2023 | ACTA, ACTA 2023

The Reform of Customary Law of Succession Act in contemporary South Africa

Author Fatima Osman

ISSN: 1996-2088
Affiliations: Bus Sci LLB LLM PhD (UCT); Associate Professor, Department of Private Law, University of Cape Town
Source: Acta Juridica, 2023, p. 186 – 213
https://doi.org/10.47348/ACTA/2023/a8

Abstract

Historically, the customary law of intestate succession was a flexible system of law that prioritised the well-being of the family. The law was distorted during the colonial and apartheid eras to focus on the individual inheritance of property. In 2010, the South African legislature passed the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 – which applies the Intestate Succession Act 81 of 1987 – to regulate the devolution of estates of individuals who live according to customary law and die intestate. This article examines whether the current framework adequately addresses the needs of contemporary South African society. It argues that the prioritisation of the nuclear family for inheritance may be out of sync with the myriad ways in which families are formed and that the Master of the High Court should be given a discretion in the distribution of an estate. This will undoubtedly result in uncertainty but may ameliorate some of the shortcomings of a fixed, rules-based system of inheritance that does not reflect contemporary society. Tshivenḓa: Ḓivhanizwakale, mulayo wa mbingano ya tshirema wa uri muthu a lovha ndaka yawe i ḓo kovhiwa vhukati ha mufumakadzi, vhana, vhabebi na vharathu wo vha u sisiṱeme ya vhutepe ya mulayo une wa vhea phanḓa mutakalo na mvelaphanḓa ya muṱa. Mulayo wo khakhiswa nga tshifhinga tsha koloni na tsha khethululo u itela u sedzesa kha vhuḽaifa ha ndaka ha muthu muthihi. Nga 2010, vhusimamilayo ha Afurika Tshipembe ho phasisa Mulayo wa Khakhululo ya Mulayo wa Mbingano ya Tshirema wa Vhuḽaifa na Ndaulo ya Mafhungo a re na Vhushaka nazwo wa 11 wa 2009 – une wa shumisa Mulayo wa u Kovha Ndaka Vhukati ha Vhaḽaifa wa 81 wa 1987 – u laula u fhiriselwa ha ndaka ya vhathu vho lovhaho vhane vha tshila u ya nga mulayo wa mbingano ya tshirema vha lovha vha so ngo sia wiḽi. Athikili iyi i ṱola arali muhanga wa musalauno u tshi dzudzanya zwavhuḓi ṱhoḓea dza tshitshavha tsha MaAfurika Tshipembe tsha musalauno. U ṱaṱa uri u vhewa phanḓa ha tshigwada tsha muṱa u itela u vhuḽaifa a zwi tsha tendelana na nḓila dzine zwigwada zwa miṱa zwa vhumbwa ngayo na uri Ṱhoho ya Khothe ya Nṱha u fanela u ṋewa maanḓa a u dzhia tsheo kha u kovha ndaka ya mufu. Izwi zwi hu si na u timatima zwi ḓo ḓisa u sa vha na vhuṱanzi fhedzi zwi nga ḓisa u fushea kha zwiṅwe zwa vhukolikoli ha sisiṱeme yo vhewaho, yo ḓisendekaho kha milayo ya vhuḽaifa vhune ha si bvisele khagala tshitshavha tsha musalauno.

The right of children born to undocumented migrants to have their best interests given paramount importance: Reimagining the South African birth registration process

by | Oct 14, 2023 | ACTA, ACTA 2023

The right of children born to undocumented migrants to have their best interests given paramount importance: Reimagining the South African birth registration process

Authors Rowan Fortuin & Salona Lutchman

ISSN: 1996-2088
Affiliations: LLB (UCT) LLM (UCT); LLB (UKZN) LLM (New York); Senior Lecturer, University of Cape Town
Source: Acta Juridica, 2023, p. 214 – 239
https://doi.org/10.47348/ACTA/2023/a9

Abstract

This article analyses the birth registration process of children born in South Africa to undocumented migrants. Birth registration is an important stepping-stone to acquiring nationality in terms of South African law. Children born to undocumented migrants face a greater risk of statelessness. Given the detrimental consequences of statelessness, the article explores the relationship between the best interests of the child principle (found in international law and the South African Constitution) and the domestic birth registration process for children born to undocumented migrants. In terms of international law, all children have a right to be registered at birth. The findings show that despite this obligation, the birth registration process imposes an onerous set of requirements on undocumented migrants. By using the best interests of the child principle as a substantive right, a procedural right and an interpretative principle, the article shows that the current birth registration process places an inordinate reliance on documentary evidence, which can frustrate the registration of the child’s birth. The article concludes with recommendations which reimagine a birth registration process for children born to undocumented migrants. siSwati: Le-athikili ihlatiya inchubo yekubhaliswa kwekutalwa kwebantfwana labatalelwe eNingizimu Afrika batalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Kubhaliswa kwekutalwa kusinyatselo lesibalulekile sekutfola buve ngekwemtsetfo waseNingizimu Afrika. Bantfwana labatalwa bantfu labachamuka kulamanye emave babhekene nengoti lenkhulu yekungayindzawo nemphilo. Uma kubukwa imiphumela lelimatako yekungayindzawo nemphilo, le-athikili ihlola kuhlobana lokukhona phakatsi kwenzuzo lencono kakhulu yemgomosisekelo wemntfwana (lotfolakala kumtsetfo wemave kanye nakuMtsetfosisekelo waseNingizimu Afrika) kanye nenchubo yekubhaliswa kwekutalwa kwasekhaya kwebantfwana labatalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Ngekwemtsetfo wemave, bonkhe bantfwana banelilungelo lekubhaliswa mhla batalwa. Lokutfolakele kukhombisa kutsi nangetulu kwalesibopho, inchubo yekubhaliswa kwekutalwa ibeka luhla lolumatima lwetidzingo kubantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Ngekusebentisa kuzuza lokuhle kwemgomosisekelo njengelilungelo lemuntfu ngekwemtsetfo, lilungelo lenchubo kanye nemgosisekelo wekuhumusha, le-athikili ikhombisa kutsi inchubo lekhona yekubhalisa kutalwa incike kakhulu tikwebufakazi lobubhaliwe, lokungaphazamisa kubhaliswa kwekutalwa kwemntfwana. Le-athikili iphetsa ngetincomo leticabanga kabusha ngenchubo yekubhaliswa kwebantfwana labatalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa.

The decision-making power of adolescents to refuse medical treatment in South Africa: Lessons from other jurisdictions

by | Oct 14, 2023 | ACTA, ACTA 2023

The decision-making power of adolescents to refuse medical treatment in South Africa: Lessons from other jurisdictions

Author Ebenezer Durojaye

ISSN: 1996-2088
Affiliations: LLB (Lagos), (LLM, LLD, Free State) Head, Socio-Economic Rights Project, Dullah Omar Institute, University of the Western Cape
Source: Acta Juridica, 2023, p. 240 – 269
https://doi.org/10.47348/ACTA/2023/a10

Abstract

This paper discusses a controversial issue in relation to the capability of adolescents to refuse life-saving medical treatment. First, it examines the concept of autonomy and the normative framework for the recognition of the right of the child to consent to and refuse medical treatment under international law. Second, it discusses the provisions of South African law on this issue. The paper then draws on the experiences of the courts in the United States of America (US) and the United Kingdom (UK) to highlight good practices and to identify the gaps in the approaches adopted. Using Nedelsky’s relational autonomy as a guide, it concludes by arguing that, in all cases, the need for a dialogue between the child and their parents or guardians is important in helping the child to make an informed decision. Such a dialogue should not be viewed as an unnecessary intrusion into the autonomy of the child, but rather as a way to support the decision-making abilities of the child. isiZulu: Leli phepha lidingida udaba okuphikisanwa ngalo maqondana namandla abantu abasha abangaphansi kweminyaka eyishumi nesishiyagalolunye okwenqaba ukwelashwa ngezindlela ezisindisa impilo. Okokuqala, lihlola isihloko sokuzimela kanye nohlaka lwenqubo lokwazisa amalungelo engane okuvuma kanye nokwenqaba ukwelashwa ngokwezempilo ngaphansi komthetho wamazwe ngamazwe. Okwesibili, lidingida izinhlinzeko zomthetho waseNingizimu Afrika ngalolu daba. Leli phepha libe selisusela imininingo kulokho okwenzeke ezinkantolo zase- United States of America (e-US) kanye nase-United Kingdom (e- UK) kugqanyiswa izinqubo ezilungile futhi kuhlonzwe amagebe ezindleleni ezisetshenzisiwe. Ngokusebenzisa i-Nedelsky’s relational autonomy njengomhlahlandlela, liphetha ngokuveza ukuthi, kuzo zonke izigameko, kubalulekile ukuba kube nengxoxo phakathi kwengane nabazali noma abanakekeli bayo ukuze kusizwe ingane ithathe isinqumo esicatshangisisiwe. Leyo ngxoxo akumele ithathwe njengokuphazamisa okungenasidingo ekuzimeleni kwengane, kodwa kunalokho kumele ithathwe njengendlela yokusekela ukuthatha isinqumo sengane.

A reflection on my academic career

by | Oct 14, 2023 | ACTA, ACTA 2023

A reflection on my academic career

Author Chuma Himonga

ISSN: 1996-2088
Affiliations: LLB (University of Zambia) LLM and PhD (University of London); Professor Emeritus, University of Cape Town
Source: Acta Juridica, 2023, p. 270 – 294
https://doi.org/10.47348/ACTA/2023/a11

Abstract

This paper is a story of my academic journey. It is a reflection on my career, highlighting the barriers and opportunities in the development of my institutional leadership, research and teaching career. It also provides glimpses, first, of how my research interests were developed and the factors that influenced my development as an academic and, secondly, of strategies adopted for the development of human capital to ensure the continuation of scholarship in the field of my work in future generations. Finally, the paper outlines the challenges I identified and engaged with in my research in the broad field of family law, including the law governing the institution of marriage and its dissolution, and their respective consequences, as well as the law governing inheritance under both common law or received law and customary law, and the legalised pluralism that this entails.

Purpose Requirement of the GAAR: Rethinking the ‘Subjective’ vs ‘Objective’ Debate

by | Oct 4, 2023 | BTCLQ, BTCLQ V14 I3

Purpose Requirement of the GAAR: Rethinking the ‘Subjective’ vs ‘Objective’ Debate

Author: Ed Liptak

ISSN: 2219-1585
Affiliations: Independent Tax Person Extraordinaire
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 3, 2023, p. 1 – 14

Abstract

The current general anti-avoidance rule (GAAR) was enacted in 2006. Its overriding goal was to provide a more consistent and effective determent to what the legislation termed ‘impermissible tax avoidance arrangements’. As the SARS Discussion Paper on Tax Avoidance and Section 103 made clear, a major problem facing the fiscus was the growth of a tax avoidance industry in which extremely complex tax shelter products were designed and marketed to taxpayers. This development reflected a shift from prior practice in which taxpayers approached advisors to obtain advice on specific problems to one in which promoters marketed carefully prearranged products to clients. These products were typically sold on a ‘black box’ basis, which hid the specific inner workings of those tax shelter products. Amongst other things, this approach enabled promoters the ability to protect their so-called intellectual property, while giving clients the opportunity to use ignorance or ‘plausible deniability’ as a defence against the GAAR. To counter this problem and to resolve inconsistent applications of former section 103, in which two taxpayers could enter into identical tax shelter products but obtain different results depending upon their subjective state of mind, Parliament introduced a hybrid test in which the subjective purpose of a taxpayer must be tested against all of the relevant facts and circumstances of the case, including the purpose of the avoidance arrangement in question. It is a hybrid approach, in which the relative weight of the objective and subjective components will depend upon the circumstances of the case. Tax shelter products are meticulously designed by their promoters for one purpose — to generate a tax benefit without having a significant impact upon a taxpayer’s business operations and to be as risk-free as humanly possible. It is in these situations that the objective purpose of an avoidance arrangement is of paramount importance, particularly where these tax shelter products have been added to otherwise straightforward commercial transactions. As a result, taxpayers should no longer be able to hide behind either their ignorance or the purpose of a larger arrangement into which a tax shelter product has been inserted, to defeat the GAAR.

South Africa’s Ambiguous Exchange Control Climate

by | Oct 4, 2023 | BTCLQ, BTCLQ V14 I3

South Africa’s Ambiguous Exchange Control Climate

Author: Robyn Berger & Esther Geldenhuys

ISSN: 2219-1585
Affiliations: Tax Executive, Bowmans Attorneys; Senior Associate, Bowmans Attorneys
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 3, 2023, p. 15 – 22

Abstract

Although the South African Minister of Finance announced in the 2020 Budget speech that sweeping reforms would be enacted to relax the South African exchange control system, it is now three years later, and no meaningful relaxation of exchange control has occurred. Rather, investment into South Africa remains plagued by exchange control laws, which result in costly and time-consuming processes for foreign investors. In January 2021, a long-awaited change to the exchange control rules was enacted, with the relaxation of the so-called ‘loop structure’ rules. Many investors jumped at the opportunity to take advantage of this relaxation and restructured their existing South African assets so that they would be owned by approved foreign structures. The relevant parties then, in line with the prescribed rules, reported the transactions to the Financial Surveillance Department of the South African Reserve Bank (FinSurv), via their Authorised Dealers. The FinSurv did not simply acknowledge receipt of the reported information as expected under the law. Rather, the FinSurv elected to reject applications submitted under the respective circular, without withdrawing the circular, leading to much uncertainty in the market, especially for those investors who have already restructured their assets, triggered taxes on the restructure and paid the taxes. Further, it appears that South Africa’s negative rating and greylisting, by the Financial Action Task Force (FATF), has triggered a stricter application of the existing exchange control regime, with more frequent application of the penalty regime by the FinSurv to identified contraventions. In the past, South African corporates were able to regularise an exchange control contravention with the FinSurv without difficulty. The process was relatively straight forward. However, lately, the responses received from the FinSurv to requests for regularisation (including to standard commercial transactions) are vague with the result that the matter does not seem to reach finalisation. The responses provided suggest that the applicant may still be subject to further investigation and ultimately may be subject to financial penalties. This is only one of the challenges such applicants face.

Protecting the Public Purse with Moral Tax Administration

by | Oct 4, 2023 | BTCLQ, BTCLQ V14 I3

Protecting the Public Purse with Moral Tax Administration

Author: Fareed Moosa

ISSN: 2219-1585
Affiliations: Associate Professor: Department of Mercantile & Labour Law, Faculty of Law, University of the Western Cape
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 3, 2023, p. 23 – 29

Abstract

This article engages with the scourge of tax immorality, an unsavoury practice adversely affecting state resources which puts South Africa’s democracy and its social transformation programme at risk. This article argues that tax immorality must be combatted head-on. To this end, it is contended that the bilateral and multi-lateral co-operation agreements concluded by the government of South Africa with their counterparts in Africa and beyond are insufficient to effectively combat tax non-compliance in all their manifestations. This is because there is no single reason for taxpayers acting in breach of their duty to the fiscus. As a result, it is argued by the author that a multi-pronged approach is needed which demands of tax administrators that they be innovative in their thinking and creative in their strategies. The nub of the thesis advanced is that, in practice, there is a correlation between, on the one hand, failure by tax authorities to fulfil their tax administration obligations with integrity and, on the other, failure by some taxpayers to comply with their tax related duties. It is further argued that conduct un-associated with a dignified tax administrator, and which may well contribute to tax immorality, includes hostility towards taxpayers, disrespect for the law and the rule of law, abuse of power, coercion, partiality, bias, threats, unethical behaviour, maladministration, and corruption. Conduct of this nature is antithetical to the final Constitution, 1996 and its democratic values and principles, all of which apply in the realm of tax administration being a facet of public administration governed by the Constitution. Finally, the author concludes that the South African Revenue Service can promote tax compliance by ensuring that it operates efficiently as an institution and that its officials act in accordance with the law and without favour, and with fairness, honour, dignity, decency, responsiveness to taxpayers’ needs, and open-mindedness.