Execution against Residential Immovable Property in terms of High Court Rule 46A

by | May 30, 2021 | SLR, SLR V32 I1

Execution against Residential Immovable Property in terms of High Court Rule 46A

Author: Reghard Brits

ISSN: 1996-2193
Affiliations: BComm (Law) LLB LLD, Associate Professor, Department of Mercantile Law, University of Pretoria
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 47 – 70
https://doi.org/10.47348/SLR/v32/i1a3

Abstract

This article provides an overview of and commentary on High Court Rule 46A, which deals with the procedural rules for executing a judgment debt against residential immovable property. Rule 46A focusses on two main aspects: determining if it is justified to sell the debtor’s home in execution and, if a sale is ordered, setting a reserve price at which the property is to be auctioned. Therefore, this article analyses the provisions of rule 46A that pertain to these two components, which also serve as two layers of protection for a debtor facing the loss of his or her home.

Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

by | May 30, 2021 | SLR, SLR V32 I1

Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

Authors: Jackie Dugard & Angela María Sánchez

ISSN: 1996-2193
Affiliations: BA LLB BAHons LLM MPhil PhD, Associate Professor, School of Law, University of the Witwatersrand; LLM student, Universidad de los Andes
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 24 – 46
https://doi.org/10.47348/SLR/v32/i1a2

Abstract

During 2017, South African decoloniality theorist Tshepo Madlingozi argued, in relation to the ongoing socio-political and economic exclusion of the black majority in South Africa, that the post-1994 rights-based constitutional order represents more continuity than rupture, consolidating a triumph of social justice over liberation and a privileging of the democratisation paradigm over the decolonisation one. In Madlingozi’s critique of the “neo-apartheid” social justice order, race continues to be the most important dividing line, and human rights constitute a western “perpetuation of the coloniality of being”. This argument resonates with broader contemporary critiques of the weak, compromising and imperial nature of human rights. Against this backdrop, we examine the potential, as well as the limits, of using human rights as a tool for social change. Engaging an intersectional analysis informed by the seminal work of Kimberlé Crenshaw and Nancy Fraser, we find that the focus on decoloniality-as-race obscures other critical fault lines to the detriment of progressive change, and that a radical reading of human rights is capable of correcting this flaw. We argue that the incorporation of gender and class lenses provides a powerful tool to change both the narrative about the drivers of inequality among capitalist democracies and the role of socio-economic rights adjudication within them. Our article is also an invitation to rethink the domestic constitutional histories of the global south by acknowledging rights-based redistributive transformations within the context of market and development policies, and to push for the uptake of rights to empower social struggle and tackle structural disadvantage.

Public Policy in Family Contracts, Part II: Antenuptial Contracts

by | May 30, 2021 | SLR, SLR V32 I1

Public Policy in Family Contracts, Part II: Antenuptial Contracts

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 3 – 23
https://doi.org/10.47348/SLR/v32/i1a1

Abstract

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

by | Feb 16, 2021 | SLR, SLR V31 I3

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 377 – 397

Abstract

Although the reciprocal duty of support between spouses is an invariable common-law consequence of marriage, spouses may extend the duty of support beyond the marriage by way of contract. Courts have also recognised contractual rights to support between unmarried intimate partners and spouses in Muslim marriages. All contracts, including those between family members, must be legal and public policy plays a role in determining the legality of contracts for spousal and partner support. This article evaluates changes in public policy about spousal maintenance, comparing agreements which establish a duty of support outside of the common law, agreements which extend the duty of support after the end of the spousal relationship through death or separation, and agreements which waive, vary or otherwise limit duties of spousal support. The article identifies certain shifts in public policy governing spousal maintenance but argues that the jurisprudence is characterised by inconsistency and contradictions, particularly in the extent to which it embodies the protection of fundamental rights and the advancement of gender equality. By way of contrast with the cases extending contractual duties of support to Muslim marriages and unmarried intimate relationships which strongly emphasise equality and non-discrimination, cases dealing with contracts regulating post-divorce maintenance restate pre-constitutional precedents based on formalistic and positivist reasoning. Another discrepancy arises between cases extending the duty of support after the death of the maintenance debtor and cases extending the duty of support after divorce or separation. The article proposes a clear evaluation of public policy in relation to these contracts, which balances the interests of contractual autonomy with the interests of fairness and equality.

Women Workers in the Informal Economy and the Function and Future of Labour Law

by | Feb 16, 2021 | SLR, SLR V31 I3

Women Workers in the Informal Economy and the Function and Future of Labour Law

Author: Elmarie Fourie

ISSN: 1996-2193
Affiliations: BProc LLM LLD, Senior lecturer, University of Johannesburg
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 398 – 423

Abstract

The bigger the informal economy becomes, the greater the need for social and labour protection for vulnerable workers and the more the inadequacy of existing labour and social protection measures is highlighted. This contribution considers the function and future of labour law in respect of the proliferating informal economy, and specifically in respect of vulnerable women workers. The aim is to also consider specific theories and perspectives concerning women workers in the informal economy by recognising their unique vulnerabilities. The purpose of this analysis is to find innovative solutions to extend protection to these vulnerable workers. The contribution then critically considers Sen’s capability approach and the further development of this approach to find sustainable solutions. The concept of a sustainable approach is also evaluated, with reference to decent work and human rights, including human dignity, within a social justice framework.

A Feminist Reading of the Emerging Jurisprudence of the African and ECOWAS Courts Evaluating their Responsiveness to Victims of Sexual and Gender-Based Violence

by | Feb 16, 2021 | SLR, SLR V31 I3

A Feminist Reading of the Emerging Jurisprudence of the African and ECOWAS Courts Evaluating their Responsiveness to Victims of Sexual and Gender-Based Violence

Author: Annika Rudman

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Professor, Faculty of Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 424 – 454

Abstract

For progressive women’s rights treaties, such as the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), to be meaningful, institutions established to interpret such treaties must assist in transforming international law into action on the domestic level. An important mechanism through which international human rights law becomes operative and accessible, as suggested in this article, is through the interpretation and application of the law by continental and regional human rights courts. What these courts do, and how they do it, send an important message to the collective of African states as to how they should fulfil their legal obligations to protect women against sexual and gender-based violence (“SGBV”). This article does not suggest that the enforcement of international human rights law by human rights courts such as the African Court on Human and Peoples’ Rights and the ECOWAS Court of Justice constitutes a “silver bullet” in ending SGBV. Instead, the analysis proposes that such courts have an important role to play in superimposing the enforcement of continental laws outlawing SGBV in all its different forms, which is one component of the larger fight against the endemic impunity from liability in cases of SGBV. This article purposely focuses on the mandate created in tandem between the Maputo Protocol and the treaties constituting the African and ECOWAS Courts. Through a feminist reading of the emerging jurisprudence, this article analyses the responsiveness of these courts in holding member states accountable for acts of SGBV under the Maputo Protocol, focusing specifically on different ways of redressing such violations. In this regard, this article emphasises that both direct state actions, where the state itself commits acts of SGBV against women through its agents, and acts that are committed by private parties necessitate the activation of the principle of due diligence to justify state responsibility.