Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

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

Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

Author: Oliver Fuo

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, Faculty of Law, North-West University, South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 484 – 500
https://doi.org/10.47348/SLR/2022/i3a7

Abstract

Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.

King Nno V De Jager 2021 4 SA 1 (CC): Three Perspectives

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

King Nno V De Jager 2021 4 SA 1 (CC): Three Perspectives

Authors: François du Toit, Matthew Harding and Andreas Humm

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Senior Professor, Faculty of Law, University of the Western Cape; BA (Hons) LLB (Hons) BCL DPhil, Dean, Melbourne Law School, University of Melbourne; Dr iur Mag iur, Former Research Associate, Max Planck Institute for Comparative and International, Private Law, Hamburg
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 501 – 528
https://doi.org/10.47348/SLR/2022/i3a8

Abstract

In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

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

Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)

Authors: Bonginkosi Shozi, Roasia Hazarilall and Donrich Thaldar

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Postdoctoral Scholar, Institute for Practical Ethics, UC San Diego, Honorary Research Fellow, University of KwaZulu-Natal; LLB, Masters candidate, University of KwaZulu-Natal; BLC LLB MPPS PGDip PhD, Professor, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

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Shozi, B, Hazarilall, R and Thaldar, D
Blood is Thicker Than Water, but is it Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)
Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 529 – 547
https://doi.org/10.47348/SLR/2022/i3a9

Abstract

The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

Author: Richard Cramer

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 548 – 559
https://doi.org/10.47348/SLR/2022/i3a10

Abstract

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.

The Conduct of “Price Undertakings” and “Interim Reviews” in the Anti-Dumping Regime of South Africa [Discussion of Casar Drahtseilwerk Saar GMBH V International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]

by | Oct 23, 2022 | SLR, SLR V33 I3

The Conduct of “Price Undertakings” and “Interim Reviews” in the Anti-Dumping Regime of South Africa [Discussion of Casar Drahtseilwerk Saar GMBH V International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]

Author: Clive Vinti

ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM PhD, Senior Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 560 – 578
https://doi.org/10.47348/SLR/2022/i3a11

Abstract

The administration of anti-dumping investigations is the sole mandate of the International Trade Administration Commission (“ITAC”). This investigation has two stages, the preliminary and final investigation stages, which are accompanied by investigation reports at each stage. The investigation can be terminated or suspended after the preliminary investigation if the offending exporter ceases exports to the Southern African Customs Union (“SACU”) at the dumped prices or revises its prices such that ITAC is satisfied that injurious dumping has been eliminated. Twelve months after the publication of the final determination in the original investigation or the previous review, interested parties can request an interim review of the duty if there are significantly changed circumstances. It is these two aspects of dumping investigations that were the subject of litigation for the first time in South African law in Casar Drahtseilwerk Saar GMBH v International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020). This note assesses the novel approach employed by the court in readily construing these aspects of the anti-dumping investigation in South Africa in accordance with the jurisprudence on the Anti-Dumping Agreement. This approach is commendable in light of the ambivalent attitude of South African courts towards the country’s obligations in terms of the multilateral agreements of the World Trade Organization, despite the promulgation of local legislation to comply with these obligations and the constitutional injunction to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

Providing Greater Clarity on the Meaning of Basic Education [Discussion of Moko V Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]

by | Oct 23, 2022 | SLR, SLR V33 I3

Providing Greater Clarity on the Meaning of Basic Education [Discussion of Moko V Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]

Authors: G Adams and BV Slade

ISSN: 1996-2193
Affiliations: BComm LLB LLM (Stell), LLD Candidate, Department of Public Law, Faculty of Law, Stellenbosch University; BComm LLB LLM LLD (Stell), Associate Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 579 – 591
https://doi.org/10.47348/SLR/2022/i3a12

Abstract

Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to a basic education. However, the exact meaning of a “basic education” as protected in this section has been rather uncertain as it is not defined in the Constitution or any legislative document. In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), the Constitutional Court accepted that basic education includes, at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution which does not offer secondary or tertiary education, provides those attending the institution with a basic education. Several policy documents refer to basic education as the General Education and Training phase of schooling, which consists of schooling from grades 1 to 9. Given the uncertainty surrounding the exact ambit of a basic education, both in case law and legislation, the Constitutional Court in Moko v Acting Principal of Malusi Secondary School 2021 3 SA 323 (CC) had to answer the question “where does basic education end and further education begin?” The court’s decision provides clarity on the meaning of a basic education as protected in section 29(1)(a). This decision is to be welcomed given the importance of the right as a direct and unqualified right, and for its transformative potential. However, there is now a misalignment between the understanding of a basic education protected in section 29(1)(a) and several policy documents issued by the Department of Basic Education. This misalignment may lead to further confusion regarding the meaning of the right to a basic education and potentially negatively impact the realisation or fulfilment of the right. This note will consider the court’s decision, particularly in relation to its finding to the question posed above.