Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Author: Fatima Essop

ISSN: 1996-2177
Affiliations: Visiting Fellow, Harvard Law School Program on Law and Society in the Muslim World
Source: South African Law Journal, Volume 140 Issue 3, p. 579-610
https://doi.org/10.47348/SALJ/v140/i3a7

Abstract

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 140 Issue 3, p. 611-646
https://doi.org/10.47348/SALJ/v140/i3a8

Abstract

Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.

Workplace bullying in the legal profession

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Workplace bullying in the legal profession

Authors: Michele van Eck & Marthinus van Staden

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 647-677
https://doi.org/10.47348/SALJ/v140/i3a9

Abstract

The International Bar Association (‘IBA’) highlighted a disturbing trend of bullying within the legal profession in its 2019 report on bullying and sexual harassment in the legal profession, both internationally and in South Africa. The substantive forms of bullying (often described as victimisation, discrimination, or harassment) may overlap in the manner, mode or way in which bullying is perpetrated, and how bullying occurs may be grouped into several distinct categories: overt (or direct) forms, covert (or indirect) forms and, finally, so-called ‘mobbing’. This article investigates the current South African legislative framework addressing workplace bullying, including the indirect remedies available to victims in terms of (i) a claim of harassment as a form of unfair discrimination under s 6(3) of the Employment Equity Act; (ii) a claim for constructive dismissal under s 193 of the Labour Relations Act; and (iii) unfair labour practices as a remedy for workplace bullying or a claim of harassment in terms of the Compensation for Occupational Injuries and Diseases Act. After finding that these indirect remedies are inadequate to address workplace bullying in the legal profession, the article explores the conduct rules of the legal profession to establish how bullying is addressed in the legal sector and conducts a comparative analysis of the way in which bullying is addressed in the Australian and New Zealand jurisdictions to identify possible solutions to curb the scourge of workplace bullying in the South African legal profession.