The limited judicial discretion to redistribute property in marriages out of community of property: Revisiting feminist arguments on intersectionality, women’s work and choice

by | Dec 28, 2023 | SLR, SLR V34 I1

The limited judicial discretion to redistribute property in marriages out of community of property: Revisiting feminist arguments on intersectionality, women’s work and choice

Authors: Elsje Bonthuys and Azille Coetzee

ISSN: 1996-2193
Affiliations: BA, LLB, LLM (Stell) PhD (Cantab), Professor of law, University of the Witwatersrand; BA, LLB, BAHons, MA (Stell), PhD (Stell) Postdoctoral fellow, Department of Psychology and Department of Philosophy, Stellenbosch University
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 185 – 209
https://doi.org/10.47348/SLR/2023/i1a9

Abstract

Section 7(3) of the Divorce Act 70 of 1979 gives courts a discretion to deviate from antenuptial contracts in marriages out of community of property without the accrual system, if it would be just to do so, because one of the spouses contributed to the growth of the other spouse’s estate. This is known as the discretion to make a redistribution order. However, when the provision was enacted, this discretion only applied to civil marriages concluded before 1984. Gradually, however, the discretion was extended to other forms of marriage and to some civil marriages concluded after 1984. This article argues that the failure to extend the redistribution discretion to all marriages impacts disproportionately on women and constitutes impermissible discrimination on the basis of gender. It does so because the seemingly neutral statutory limitation on redistribution orders operates in a social context which is deeply marked by structural gender inequalities. These, in turn, mean that many women tend to be in a weaker bargaining position than men with respect to the terms of antenuptial contracts and whether spouses enter into such contracts at all. Moreover, women’s disproportionate responsibility for childcare and other domestic tasks usually has a negative impact on their ability to generate income and grow their own estates, while often enhancing those of their husbands. The failure of the law to take account of actual inequalities between men and women means that the current position discriminates indirectly on the basis of gender and there is no legitimate government purpose which justifies this discrimination.

An analysis of the application of section 2B of the Wills Act 7 of 1953 to married Muslim couples who subsequently divorce

by | Dec 28, 2023 | SLR, SLR V34 I1

An analysis of the application of section 2B of the Wills Act 7 of 1953 to married Muslim couples who subsequently divorce

Author: Muneer Abduroaf

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD, Associate Professor, Department of Private Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 210 – 218
https://doi.org/10.47348/SLR/2023/i1a10

Abstract

Section 2B of the Wills Act 7 of 1953 states that “[i]f any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.” This note looks at the application of section 2B of the Wills Act to a divorced Muslim spouse in the event that on his or her death, he or she leaves behind a will stating that his or her estate should be distributed in terms of the Islamic law of succession. An overview of the application of the Islamic law of succession within the South African context is looked at by way of introduction. The impact of section 2B of the Wills Act on the right of a divorced Muslim spouse to inherit in terms of an Islamic will is then analysed. Possible constitutional challenges in the application of the Islamic law of succession within the South African legal context are also highlighted. The note concludes with an overall analysis of the findings and makes a recommendation.

Protecting spousal interests in immovable property forming part of the j oint estate: Improving the operation of section 15 of the Matrimonial Property Act 88 of 1984 [Discussion of Vukeya v Ntshane 2022 2 SA 452 (SCA)]

by | Dec 28, 2023 | SLR, SLR V34 I1

Protecting spousal interests in immovable property forming part of the joint estate: Improving the operation of section 15 of the Matrimonial
Property Act 88 of 1984 [Discussion of Vukeya v Ntshane 2022 2 SA 452 (SCA)]

Author: Amanda Barratt

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD, Associate Professor, Department of Private Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 219 – 231
https://doi.org/10.47348/SLR/2023/i1a11

Abstract

The Supreme Court of Appeal ruling in Vukeya v Ntshane 2022 2 SA 452 (SCA) (“Vukeya”) provides a useful lens through which to examine the ostensible protection that section 15 of the Matrimonial Property Act 88 of 1984 provides for the patrimonial interests of spouses married in community of property. Section 15(2) of the Act appears to provide powerful protection for the spouses’ interests in their immoveable property. However, this protection can be scuppered when an errant spouse transacts with a bona fide third party who qualifies for protection in terms of section 15(9)(a) of the Act. In the Vukeya ruling, the court applied a stringent test to assess whether the third party could reasonably have known that the contracting spouse lacked the required spousal consent. The third party was deemed to qualify for the legislative protection, in part because the information in the Deeds Registry was out of date. The note suggests that there should be better communication between the Department of Home Affairs and the Deeds Registry to avoid this kind of prejudice to married spouses. It is the responsibility of the government departments concerned to update their electronic data systems so that the objectives of the protective legislation (the Matrimonial Property Act and the Deeds Registries Act 47 of 1937) can be achieved in practice. The note argues further that section 15(9) of the Act does not provide a reasonable balance between protecting the interests of third parties and the interests of non-consenting spouses. It suggests an amendment to the legislation to provide a more equitable balance by incorporating some aspects of the common law actio Pauliana.

Same difference [Discussion of Clicks Retailers (Pty) Ltd v Commissioner for the South African Revenue Service 2021 4 SA 390 (CC)]

by | Dec 28, 2023 | SLR, SLR V34 I1

Same difference [Discussion of Clicks Retailers (Pty) Ltd v Commissioner for the South African Revenue Service 2021 4 SA 390 (CC)]

Authors: Sumarie Swanepoel and Teresa Pidduck

ISSN: 1996-2193
Affiliations: BCom, BCom Honours, M Com, Senior Lecturer, Faculty of Economic and Management Sciences, University of Pretoria; BBusCom, BCom Honours, M Com, PhD, Associate Professor, Faculty of Economic and Management Sciences, University of Pretoria
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 232 – 246
https://doi.org/10.47348/SLR/2023/i1a12

Abstract

This case note comments and analyses the facts and judgment in Clicks Retailers (Pty) Ltd v CSARS 2021 4 SA 390 (CC) (“Clicks”) and links it to the judgment in Big G Restaurants (Pty) Ltd v CSARS 2020 6 SA 1 (CC) (“Big G”), revealing that both judgments are an indictment of the inability of South African tax legislature to adapt to dynamic business needs adequately and expeditiously; more specifically, with regard to the operation of customer loyalty programmes. The analysis unearths a disjointedness between the legislature’s intention and the wording of section 24C of the Income Tax Act 58 of 1962. An argument is made that it is not constructive for the Commissioner to advance the cause of the fiscus by relying on a strict interpretation of the applicable legislation that relies on a “splitting of hairs”. While the analysis reveals that by denying the section 24C allowance, the judgment in Clicks may have severe consequences for some providers of customer loyalty programmes, the judgment may not apply to all such programmes. Thus, the judgments in Clicks and Big G indicate that it is time that the intention of the legislature be made more explicit to prevent inconsistencies in judicial interpretation. Further, it may be time for the amendment of legislation to prevent a narrow interpretation to the detriment of taxpayers.

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

Author: Rehana Cassim

ISSN: 1996-2193
Affiliations: BA LLB LLM LLD, Associate Professor, Department of Mercantile Law, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 349 – 375
https://doi.org/10.47348/SLR/2022/i3a1

Abstract

During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

Authors: Tangeni Nanyemba and Mikovhe Maphiri

ISSN: 1996-2193
Affiliations: LLB LLM, Candidate Attorney; LLB LLM, Lecturer and doctoral candidate, UCT, Attorney of the High Court
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 376 – 395
https://doi.org/10.47348/SLR/2022/i3a2

Abstract

Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.