The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

by | Nov 20, 2022 | FUND, FUND V28I1

The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

Author Stephan van der Merwe

ISSN: 2411-7870
Affiliations: BComm LLB LLM PGDip (Higher Education: Teaching and Learning) (University of Stellenbosch). Senior attorney, notary public and lecturer, Law Clinic, University of Stellenbosch
Source: Fundamina, Volume 28 Issue 1, p. 140-170
https://doi.org/10.47348/FUND/v28/i1a4

Abstract

In South Africa, wage garnishment is achieved through the emolument attachment order (hereafter “EAO”) mechanism. This civil debtcollection instrument plays a significant role in South African society, affecting the lives of potentially millions of people. It is therefore concerning that the mechanism is often criticised for lacking effective measures to prevent, monitor, identify and then correct irregularities in the collection of debt through EAOs. This contribution considers the historical context that directed the development of the South African EAO mechanism and the composition of the current South African framework regulating EAOs. It considers South Africa’s unique legal approach resulting from the development of common-law procedural affordances supporting a predominantly civil-law substantive system. It analyses the role of Roman law, Roman-Dutch law, English common law, and the constitutional dispensation in shaping the contemporary EAO mechanism. In the process, the study identifies challenges that have been present since the mechanism’s earliest origins, which can be traced through its historic development and remain contentious in its contemporary version. The study is significant since the EAO mechanism has not yet been subjected to a comprehensive and critical analysis of this kind. Limited research has been conducted on the South African EAO mechanism and there has not been any detailed analysis of its history and development. It is submitted that such an analysis is a necessary first step to facilitate further in-depth comparative research with the aim of developing an effective and fair EAO mechanism.

The History of the Creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and Kwazulu from 1869 to 1985

by | Apr 15, 2022 | FUND, FUND V27I2

The History of the Creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and Kwazulu from 1869 to 1985

Author Mothokoa Mamashela

ISSN: 2411-7870
Affiliations: Research fellow, UKZN
Source: Fundamina, Volume 27 Issue 2, p. 1-38
https://doi.org/10.47348/FUND/v27/i2a1

Abstract

This contribution discusses the creation of an official, colonial version  of the customary law of marriage and divorce in the Natal colony and  Zululand by the colonial administration. Traditional African institutions,  hereditary traditional leaders and their courts were replaced with  magistrates and British officials at public and administrative levels.  Customary law was codified, thus robbing it of its diversity, flexibility  and dynamism.  In traditional customary law a marriage was constituted in several  ways: arranged, forced, woman to woman, sororate and levirate  marriages occurred. However, the Natal colonial administration prohibited  these types of marriages, viewing them as repugnant to the  administration’s sense of morality and justice. A customary marriage  was also family-centred and processual; it united two families and not  only two individuals, and it took a long time to come into existence.  This characteristic of a customary marriage was also drastically  changed by the Natal colonial administration by removing it from the  purview/control of the family to the individuals themselves in that the  bride and groom were encouraged to choose their partners and to give  their consent freely to their own marriage. Marriage and divorce were  individualised and the couple’s families were gradually left out.  The principle regarding irretrievable breakdown of a marriage was  replaced with the guilt principle. In addition, five common-law grounds  for divorce were introduced into the customary law of divorce, and the  inquisitorial procedure was replaced with the adversarial one.  Patriarchy, one of the tenets of customary law, was diminished  through legislation that whittled down the excessive powers that fathers  had over their children. The legislation sought to endow women and  children with basic human rights and the gradual recognition of their  property rights. Colonial administrative changes meant that polygyny  and ilobolo were discouraged; that marrying more than one wife was  seen as enslavement of women; and that the transfer of ilobolo was  misinterpreted as the selling of women. 

Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

by | Apr 15, 2022 | FUND, FUND V27I2

Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 27 Issue 2, p. 38-66
https://doi.org/10.47348/FUND/v27/i2a2

Abstract

Article 23(6)(a) of the Ugandan Constitution of 1995 provides that an arrested person is entitled to apply to court for discretionary bail. If a person has been awaiting trial for a specified number of days, article 23(b) and (c) obligates a court to release him/her on mandatory bail. This contribution analyses more than one hundred judgments of the Ugandan courts to determine how the question of bail, especially mandatory bail, has been dealt with judicially. Since article 23(6) does not expressly provide for the right to bail, the Ugandan Constitutional Court has come to conflicting conclusions on the question of whether article 23(6) provides for the right to be released on bail; for the right to apply for bail; or for both the right to apply for bail and to be released on bail. Relying on the drafting history of article 23(6), the author argues that the intention of the Constituent Assembly was to provide for the right of arrested persons to be released on bail. Article 23(6) also provides for mandatory bail. However, in some decisions, the High Court held that the right to mandatory bail does not fall away the moment at which a person who qualifies for it in terms of article 23(6) is committed to the High Court for trial. Based on the drafting history and literal interpretation of article 23(6), it is submitted that the moment an accused’s trial commences in a subordinate court or when they are committed to the High Court, their right to mandatory bail falls away. In addition, the High Court has held that a person who qualifies for mandatory bail is required to prove exceptional circumstances before they can be released on bail. This contribution argues that no such burden of proof exists.

The Pirate as Hostis Humani Generis: the Illegitimate Enemy

by | Apr 15, 2022 | FUND, FUND V27I2

The Pirate as Hostis Humani Generis: the Illegitimate Enemy

Author Vishal Surbun

ISSN: 2411-7870
Affiliations: LLB LLM (Maritime Law) PhD (University of KwaZulu-Natal). Senior lecturer, School of Law, University of KwaZulu-Natal. Attorney and Notary Public of the High Court of South Africa
Source: Fundamina, Volume 27 Issue 2, p. 67-86
https://doi.org/10.47348/FUND/v27/i2a3

Abstract

Alongside the widely accepted definition of maritime piracy, the phrase hostis humani generis or “enemies of all humankind” has been frequently used in piracy jurisprudence and scholarship. This contribution traverses the historical usage of the phrase in academic commentaries and finds that while a literal translation of the phrase has mostly remained the same over the centuries, there has been no consistent definition and contextualisation of the term “enemy”. In this context, the contribution then investigates whether the phrase is a reliable epithet, and whether it should be seen as part of the definition of “pirate”.

Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

by | Apr 15, 2022 | FUND, FUND V27I2

Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

Author Liezl Wildenboer

ISSN: 2411-7870
Affiliations: Senior lecturer, Department of Jurisprudence, College of Law, University of South Africa
Source: Fundamina, Volume 27 Issue 2, p. 87-124
https://doi.org/10.47348/FUND/v27/i2a4

Abstract

Although the Cape had experienced frequent outbreaks of smallpox and other epidemics since the early eighteenth century, the first smallpox epidemic only started in the Zuid-Afrikaansche Republiek (ZAR) much later, in the 1890s. This contribution takes a closer look, first, at the regulation of the medical profession in the ZAR, and, secondly, at the government’s attempts to prevent the spread of the disease with the promulgation of the Contagious Diseases Law 12 of 1895. That law also attempted to prevent the spread of other diseases, such as syphilis and leprosy, although the latter would eventually be regulated in terms of the Leprosy Law 15 of 1897.

A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

by | Sep 19, 2021 | FUND, FUND V27I1

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.