Deciding matters of general public importance: An analysis of the value-laden approach

by | Jun 18, 2022 | SLR, SLR V33 I2

Deciding matters of general public importance: An analysis of the value-laden approach

Author: Paul Nkoane

ISSN: 1996-2193
Affiliations: BComm LLB LLM Lecturer, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 25 – 45
https://doi.org/10.47348/SLR/2022/i2a2

Abstract

There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.

Making and disputing jeopardy assessments: An administrative law perspective

by | Jun 18, 2022 | SLR, SLR V33 I2

Making and disputing jeopardy assessments: An administrative law perspective

Author: S De Lange

ISSN: 1996-2193
Affiliations:BAcc LLB MComm (Tax) Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 46 – 69
https://doi.org/10.47348/SLR/2022/i2a3

Abstract

The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

by | Jun 18, 2022 | SLR, SLR V33 I2

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

Author: MA (Riette) Du Plessis

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD Associate Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 70 – 90
https://doi.org/10.47348/SLR/2022/i2a4

Abstract

In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.

Termination of Muslim marriages in the South African legal context: Understanding the challenges

by | Jun 18, 2022 | SLR, SLR V33 I2

Termination of Muslim marriages in the South African legal context: Understanding the challenges

Author: M Osman-Hyder

ISSN: 1996-2193
Affiliations: BA LLB LLM Honorary Research Fellow, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 91 – 109
https://doi.org/10.47348/SLR/2022/i2a5

Abstract

Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

by | Jun 18, 2022 | SLR, SLR V33 I2

Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

Author: Alina Starosta

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 110 – 124
https://doi.org/10.47348/SLR/2022/i2a6

Abstract

Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

by | Jun 18, 2022 | SLR, SLR V33 I2

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

Authors: Ademola Oluborode Jegede and Myrone Christopher Stoffels

ISSN: 1996-2193
Affiliations: LLB LLM LLD Professor of Law, University of Venda; LLB, LLM Lecturer, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 125 – 147
https://doi.org/10.47348/SLR/2022/i2a7

Abstract

The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.