Perpetuating Harm: The Sentencing of Rape Offenders Under South African Law

by | Oct 21, 2019 | SALJ, SALJ V133 I2 2016

Perpetuating Harm: The Sentencing of Rape Offenders Under South African Law

Authors Amanda Spies

ISSN: 1996-2177
Affiliations: Senior Lecturer, College of Law, University of South Africa
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 389 – 408

Abstract

Feminists have long viewed the criminal justice system — the system that women access to gain protection from or recourse against sexual violence — as the ultimate gendered institution, often reinforcing deeply sexist assumptions about women. The sentencing of rape offenders under current minimum-sentencing legislation has done little to change this perception, as judicial officers employ commonly held rape myths and stereotypes in their sentencing practice. This article explores the sentencing of rape offenders under the minimum-sentencing legislation and highlights the need for judicial sensitisation in adjudicating sexual violence matters.

The Role of the Lawyer in the Commercial Mediation Process: A Critical Analysis of the Legal and Regulatory Issues

by | Oct 21, 2019 | SALJ, SALJ V133 I2 2016

The Role of the Lawyer in the Commercial Mediation Process: A Critical Analysis of the Legal and Regulatory Issues

Authors Ronán Feehily

ISSN: 1996-2177
Affiliations: Senior Lecturer, Middlesex University; Honorary Fellow of Commercial Law, Durham University
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 352 – 388

Abstract

The most common complaint about the current civil justice system in South Africa is that the cost of litigation is prohibitive. Mediation can produce cost-effective results for disputing commercial parties that an arbitrator is unlikely or unable to award or a court would or could never decree, such as an apology or the redrafting of a commercial agreement to take account of changed economic circumstances. Parties in a mediation empower themselves to find their own solution with the assistance, guidance and support of their lawyers who are present as legal advisers rather than legal representatives. The article analyses the role of the lawyer in this context, the limits of adjudication and the possibilities of commercial mediation and the differing core values, roles and processes between the two approaches. The duties of lawyers before and after the process commences are analysed. The potential legal liability of lawyers in mediation is analysed and the role of lawyers as gatekeepers of the process is discussed. Mediation operating in the shadow of the law and its closeness to the justice ideal are the final issues considered. Throughout the piece the author provides commentary on proposals for regulatory and law reform covering this area.

The Community-Preferent Right to Prospect or Mine: Navigating The Fault-Lines of Community, Land, Benefit and Development in Bengwenyama II

by | Oct 21, 2019 | SALJ, SALJ V133 I2 2016

The Community-Preferent Right to Prospect or Mine: Navigating The Fault-Lines of Community, Land, Benefit and Development in Bengwenyama II

Authors Tracy Humby

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 316 – 351

Abstract

Section 104 of the Mineral and Petroleum Resources Development Act 28 of 2002 allows for a community to obtain a preferent prospecting or mining right to land registered or to be registered in the name of the community concerned, provided certain additional conditions are met. While this is ostensibly a means to promote local and rural development and the social upliftment of communities affected by mining, s 104 is hampered by a number of interpretive difficulties centring on the meaning of ‘community’, land ‘to be registered’ in the name of the community, the accrual of ‘benefits’, and ‘development and social upliftment’. This article examines the extent to which these interpretive difficulties have been resolved by the decisions of the Gauteng North High Court and the Supreme Court of Appeal in recently decided cases launched by the Bengwenyama-ye-Maswazi community (Bengwenyama II). While the courts have clarified a few of the interpretive difficulties, a number of ambiguities and concerns remain.

Intestate Succession and Surviving Heterosexual Life Partners: Using the Jurist’s ‘Laboratory’ to Resolve the Ostensible Impasse That Exists After Volks v Robinson

by | Oct 21, 2019 | SALJ, SALJ V133 I2 2016

Intestate Succession and Surviving Heterosexual Life Partners: Using the Jurist’s ‘Laboratory’ to Resolve the Ostensible Impasse That Exists After Volks v Robinson

Authors Bradley Smith

ISSN: 1996-2177
Affiliations: None
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 284 – 315

Abstract

While South African family lawyers and the public at large wait patiently for the legislature to enact legislation to regulate the recognition and legal consequences of life (or domestic) partnerships, the prevailing legal position differentiates between surviving same-sex and opposite-sex life partners by permitting only the former group to qualify as the intestate heirs of their respective deceased partners. The positive law appears to find itself in a deadlocked position in this respect due to the precedent-setting judgment of the Constitutional Court in the matter of Volks NO v Robinson and the ‘choice argument’ (or ‘objective model of choice’) endorsed by the majority judgment in that case. This article attempts to find a hypothetical solution to break this deadlock. This may be accomplished by litigation that is argued on the basis of the surviving heterosexual life partner’s right not to be unfairly discriminated against on the intersecting grounds of marital status and sexual orientation. Embracing such an argument would enable a future court to circumvent the ratio in Volks while at the same time according due deference to the doctrine of precedent. It would also allow the court to evaluate existing scholarly contributions in a new light. In particular, the views of those scholars who hypothesise that homophobia and/or affirmative action measures should justify the retention of the status quo, is challenged. It will instead be argued that the prevailing position not only unfairly discriminates against, but also violates the right to dignity of, surviving heterosexual life partners who satisfy the criteria laid down for surviving same-sex life partners in order to qualify as one another’s mutual intestate heirs in terms of the judgment in Gory v Kolver NO. The judicial extension of the right to inherit on intestacy to such life partners, in accordance with the ‘parallel accommodation’ hypothesis is therefore constitutionally mandated.