Abstract

Proving living customary law in court can be a challenging task. This is further exacerbated by the fact that although the foundational values of a customary practice may be uniform, practices may differ, with the result that courts may hear different versions based on the same norm. The court to date has merely opted for one version over another, without establishing whether a practice is observed as obligatory or as a social practice. The argument of this contribution is that although determining living customary law in court is mired in difficulties, the courts have exacerbated the problem by not interrogating whether certain practices are observed out of a sense of obligation. The courts also tend to find unconstitutionality, even when the customary practice in question may have solutions that are consistent with the Constitution. Although customary law is subject to the Constitution, this does not necessarily mean that the Constitution is the only solution to adjudicate disputes. It is further argued that courts exacerbate the problem further by accepting evidence that is submitted, without determining the motive behind such evidence given by witnesses.

Abstract

The Matrimonial Property Act 88 of 1984 ensures equal spousal powers in relation to the administration of the joint estate. Section 15 of the Matrimonial Property Act entrenches the right to joint administration by requiring written consent of the other spouse in transactions that would have a substantial impact on their share of the joint estate. Most notably, section 15(2)(g) requires the consent of a spouse “to enter into a contract as defined in the Alienation of Land Act” which is generally understood as requiring the consent of both spouses when purchasing immovable property. The Alienation of Land Act 81 of 1988 defines “contract” as a “deed of alienation under which land is sold against payment by the purchaser to, or to any person on behalf of, the seller of an amount of money in more than two installments over a period exceeding one year”. This wording effectively limits the requirement for spousal consent to installment sales which reveals a fatal flaw or loophole in the protection afforded by the system of joint administration of the joint estate for spouses married in community of property. Most modern property transactions are cash sales secured by mortgage and not installment sale transactions. With reference to reported and unreported cases, this article investigates the loophole and proposes a way in which the devastating effects of the flaw might be mitigated in future cases.

Abstract

In South African Revenue Services v Commission for Conciliation, Mediation & Arbitration, Kruger, the employee, called his superior a “kaffir” on more than one occasion. The employer unilaterally dismissed the employee after the chairperson of the disciplinary hearing had imposed a lesser sanction. In doing so, the employer disregarded the collective agreement which did not make provision for the sanction of the disciplinary chair to be substituted. The employee claimed that his dismissal was invalid and therefore unfair. The Commission for Conciliation Mediation and Arbitration (“CCMA”), Labour Court and Labour Appeal Court (“LAC”) agreed. However, in the Constitutional Court (“CC”) the employer no longer argued that it was entitled to substitute the sanction in the light of the breach in the trust relationship, but only alleged that reinstatement was a remedy that no reasonable decision-maker would order. The CC agreed and held that the dismissal was substantively fair but procedurally unfair. The CC did not answer questions of lawfulness, fairness and invalidity, but in Steenkamp v Edcon the CC held that employees claiming remedies for unfair dismissal in terms of the Labour Relations Act 66 of 1995 (“LRA”) should not rely on invalidity. However, employees still have the right to common-law remedies based on their employment contract. Considering the importance of collective agreements, negotiated disciplinary codes, certainty and consistency, and to avoid employers exercising unfettered power over employees, state organs should apply for a review of an unsatisfactory sanction by the disciplinary chairperson in terms of section 158(1)(h) of the LRA. Private employers could negotiate a disciplinary code which allows both the employer and employee to appeal against the decision of the disciplinary chair which should make provision that a more severe sanction can be imposed on appeal.

Abstract

Millions of refugees worldwide are living in protracted situations with no end in sight. This is the situation even though refugeehood was never envisaged to be a long-lasting or permanent status. On the contrary, it was always meant to be of a temporary nature. In reality however, this status may be indefinite, and the perpetual refugee status of most of the world’s refugees today provides clear evidence thereof.

This article seeks to rethink the legal regime for refugees in protracted situations. In part one it reviews the supposed temporary nature of refugeehood and considers whether the drafters of international and refugee law anticipated protracted refugee situations. Part two provides a historical and global overview of protracted situations, explores key issues that lead to chronic exile and examines why current approaches have been insufficient. Part three then offers possible solutions by calling for a focus on responsibility-sharing, as outlined in the Global Compact on Refugees.

These proposed solutions seek to address the issues caused by a lack of political will, as demonstrated through case studies. Temporary refugee status deprives refugees of certain civil and political rights necessary for meaningful integration into their host state.

Protracted refugee situations further put people at risk of statelessness. In order to avoid continuous human rights violations, it is vital to explore durable solutions. This article postulates that the Global Compact on Refugees provides a viable solution to protracted refugee situations on the African continent. Responsibility-sharing between states and other global actors can support under-resourced host states and tackle the lack of political will that seems to prevent successful refugee integration.

Abstract

The Companies Act 71 of 2008 (“the Companies Act”) introduced a provision into South African law that for the first time permits the board of directors to remove another director from office. This provision is contained in section 71(3). This article argues that when the board of directors exercises its power under the Companies Act to remove a director from office it may not breach its fiduciary duties to the company. The directors’ specific fiduciary duties which may apply when the board removes a director from office are explored. This article further examines the consequences of a director breaching his fiduciary duties in removing a board member from office. The question whether such a director runs the risk of incurring personal liability for removing a director in breach of his fiduciary duties is discussed. In addition, the controversial question whether an improperly removed director may be reinstated to office, is also canvassed. The pivotal and contentious English case of Lee v Chou Wen Hsien (“Lee”), in which the court did not reinstate a director who had been wrongly removed by the board – with ulterior motives and in breach of their fiduciary duties – is critically analysed. In light of section 5(2) of the Companies Act, which provides that a court interpreting or applying the Companies Act may consider foreign law to the extent that it is appropriate, this article analyses whether the decision in Lee would be of persuasive authority in South African law. In addition, the article investigates whether any distinctions may be drawn between the applicable company law principles in the United Kingdom (“UK”) on the removal of company directors, and the Companies Act. Finally, this article makes some recommendations relating to the fiduciary duties of directors in removing fellow board members from office.

Abstract

Ownership is often viewed as superior in the sense that all other rights or interests are seen as subordinate to ownership. It is often viewed in this light because it is a substantial ingredient of the patrimonial rights that make up a legal subject’s entire state of assets. Ownership is also sometimes seen as the mother right because all other rights purportedly derive from ownership. This article attempts to challenge this view by relying on a number of examples that point towards a redefining of the contours of ownership. The owner’s inability to use the rei vindicatio in some instances, his failure to be able to demand removal of an encroaching structure and the ability of other (sometimes constitutional) rights to prevent the enforcement of ownership, arguably calls for a different, changed perspective of ownership in the new constitutional dispensation. It is on this basis that this article questions whether what has always been deemed exceptions, qualifications and caveats to our general understanding of ownership, should in fact point towards a redefining of the contours of ownership.