Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State as Buyer (2019)

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State
as Buyer (2019)

Author Allison Anthony

ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 137 Issue 4, p. 807-810

Abstract

None

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

Authors Rilwan F Mahmoud & Adrian Hugh Bellengère

ISSN: 1996-2177
Affiliations: PhD graduate, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 3, p. 371-388

Abstract

The amendment of the Uniform Rules of Court to include service by electronic mail  has raised the interesting question of service through electronic media other than  electronic mail. Recent developments have partially answered this question with regard  to substituted service via Facebook. However, it is still a relatively novel concept and  has not yet been extended to WhatsApp in South Africa. This note examines the  criteria employed in determining the likelihood of accomplishing substituted service  via WhatsApp. First, the principles underlying substituted service are examined,  followed by an assessment of the impact and reach of social media platforms,  a summary of the initial moves to incorporate them into South African procedural law,  and a description of the technical attributes of WhatsApp. Several judgments from  around the world, tentatively embracing service via WhatsApp, are then discussed,  followed by an assessment of the standards that need to be met in order to ensure  effective service, and the factors that a court needs to consider when faced with such a  request. The note concludes that a reasonable degree of certainty that service can be  achieved by WhatsApp exists, and that it could therefore be an effective medium for  substituted service. 

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

Author Fatima Osman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 3, p. 389-406

Abstract

The Recognition of Customary Marriages Amendment Bill provides that spouses  in polygamous marriages concluded before the commencement of the Recognition of  Customary Marriages Act 120 of 1998 have joint rights of ownership, management  and control over marital property. The Bill creates uncertainty by failing to  explain what is meant by joint rights of ownership and control, which uncertainty  is exacerbated by the incorporation of the terms ‘marital’, ‘personal’, ‘house’ and  ‘family’ property without concrete definitions of these terms. The burden will fall to  courts to re-imagine the antiquated definitions of these concepts in the current socioeconomic  context. Moreover, the amendments are not reconciled within the existing  legal framework. Consequently, women in polygamous marriages concluded before the  Act’s commencement may, counter-intuitively, have greater rights than those women  in polygamous marriages concluded after the commencement of the Act. The note thus  argues for substantial revisions before the Bill is passed. 

The case for asylum seekers’ entitlement to unemployment insurance fund benefits: Musanga v Minister of Labour

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The case for asylum seekers’ entitlement to unemployment insurance fund benefits: Musanga v Minister of Labour

Author Dakalo Singo

ISSN: 1996-2177
Affiliations: Director, Werksmans Attorneys
Source: South African Law Journal, Volume 137 Issue 3, p. 407-423

Abstract

In this case note, the author discusses the unreported high court case of Musanga  v Minister of Labour. The applicants were a group of asylum seekers who  challenged the constitutionality of long-standing statutory provisions and institutional  conduct that effectively excluded them from being able to claim benefits from the  Unemployment Insurance Fund (‘UIF’), despite the fact that they had contributed  to the UIF during their employment. The note analyses the arguments made by the  applicants to establish that their constitutional rights to equality, human dignity and  access to social security (as encapsulated in the Bill of Rights of the Constitution of  the Republic of South Africa, 1996) had been unjustifiably infringed. The note also  considers the counter-arguments by the respondents who opposed the application.  Having outlined and evaluated the parties’ respective arguments, the author summarises  the salient aspects of the court order which, importantly, confirmed (i) the constitutional  invalidity of the exclusionary provisions and conduct, and (ii) that asylum seekers are  entitled to claim benefits from the UIF. The note highlights the importance of the case  in realizing South Africa’s social-justice ambitions.