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.

Contributing to the Achievement of Justice for Victims of Sexual and Gender-Based Violence by Implementing the Legacy and Experience of International Criminal Courts and Tribunals

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

Contributing to the Achievement of Justice for Victims of Sexual and Gender-Based Violence by Implementing the Legacy and Experience of International Criminal Courts and Tribunals

Author: Mispa Roux

ISSN: 1996-2193
Affiliations: LLB LLM LLD (UJ), Senior Lecturer, Department of Public Law, Faculty of Law, University of Johannesburg; Head: Sexual and Gender-Based Violence Unit, and Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg.
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 455 – 480

Abstract

International criminal courts and tribunals have been questioning, improving, and developing the laws on sexual and gender-based violence (“SGBV”), including the rules of procedure and evidence relating to it. The purpose of this article is to evaluate the legacy of these international criminal courts and tribunals in ensuring that all victims of SGBV achieve justice. It is argued that this can, and should, change the archaic and misogynistic way in which laws on SGBV have historically been implemented globally. This article suggests that justice for victims of SGBV can be achieved in three different ways, which are to be implemented in conjunction with one another. Firstly, justice can be achieved by way of accountability, focusing mainly on individual criminal responsibility. Secondly, justice can be achieved by way of reparation that may be ordered by an international criminal court or tribunal as a penalty, in addition to imprisonment. The third and final way suggested to achieve justice for victims is by eradicating the culture of silence, denial and stigmatisation in which victims are shrouded. The article concludes by briefly examining the need for a holistic approach in achieving justice for victims of SGBV that will involve all role-players and will implement all three methods simultaneously. These three levels of justice will be substantiated with reference to the constitutive acts, rules of procedure and evidence, best practice and policy manuals, and jurisprudence of the various international criminal courts and tribunals.

Using the Rome Statute in the Democratic Republic of Congo’s Domestic Courts to Investigate and Prosecute Sexual and Gender- Based Violence Committed in Armed Conflicts

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

Using the Rome Statute in the Democratic Republic of Congo’s Domestic Courts to Investigate and Prosecute Sexual and Gender-Based Violence Committed in Armed Conflict

Author: Margaret Ashiru

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Senior Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 481 – 504

Abstract

In 2015 the President of the Democratic Republic of Congo (“DRC”) promulgated the adoption of the bill implementing the International Criminal Court’s Rome Statute into the DRC’s domestic laws. The promulgation of the Act implementing the Rome Statute, published in the DRC’s Official Journal, allowed the DRC to give full effect to the Rome Statute and have its domestic laws amended in line with the Rome Statute. This article analyses the Act in relation to sexual and gender-based crimes committed in armed conflict situations. This article also considers two cases to assess how mobile judges have applied the Act since its promulgation in the investigation and prosecution of such crimes, thereby identifying the challenges faced by the courts in applying international crimes, and how they have tried to overcome these challenges.

Curbing the Use of Foreign Trusts to Bypass Controlled Foreign Company Rules: A Critical View of Recent Taxation Amendments

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

Curbing the Use of Foreign Trusts to Bypass Controlled Foreign Company Rules: A Critical View of Recent Taxation Amendments

Author: Reinhard Rudd

ISSN: 1996-2193
Affiliations: B Com (Hons) M Com CA (SA), Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 505 – 525

Abstract

The legislature set out to close the gap in the tax treatment of schemes where a foreign trust is interposed between a South African resident and a foreign company. With regards to South African resident companies, this was done by amending the definition of a Controlled Foreign Company (“CFC”) to include any company of which the financial results would be included in the consolidated financial statements of the resident company in terms of IFRS 10. As far as resident natural persons are concerned, after failing to include such companies in the definition of a CFC, amendments were made to the provisions relating to the taxation of trusts. In this regard, section 7(8)(aA) and section 25B(2B) of the Income Tax Act were introduced, both of which require the foreign dividend exemption in terms of section 10B(2)(a) to be ignored when determining whether an amount would have constituted income had the relevant person been a resident. In this article, a number of concerns regarding these amendments are discussed. First, consideration is given as to whether the amendments to section 7(8) were needed at all considering court decisions regarding the interpretation of the provisions of section 7. Next, consideration is given to whether the deemed net income inclusion which would result from determining the income of the foreign trust as if it were a resident could trigger the attribution rule in terms of section 7(8). The question is also raised why the legislature only required section 10B(2)(a) to be ignored in determining whether an amount would have constituted income had the person been a resident and not also section 10B(2)(c). Lastly, consideration is given to whether the amount included in the income of a beneficiary of a foreign trust in terms of section 25B(2A) retains its nature as income or whether it becomes capital in nature, which would result in excessively harsh treatment of the amount in the hands of the resident beneficiary.