scholarly journals There and Back Again? Police Reforms Through the Prism of the Recruitment Decisions in the High Court and the Court of Appeal

2015 ◽  
Author(s):  
Festus M Kinoti
Keyword(s):  
High Court ◽  
Court Of Appeal

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

scholarly journals Harvey v Beveridge: Common Intention Constructive Trusts in New Zealand?

2015 ◽  
Vol 46 (3) ◽  
pp. 959
Author(s):  
Mark Bennett
Keyword(s):  
New Zealand ◽  
High Court ◽  
Adequate Understanding ◽  
Court Of Appeal

This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge in respect of the existence of "common intention constructive trusts" in New Zealand law. It analyses the development of constructive trusts doctrine in New Zealand, and argues that a different approach was taken to the application of this doctrine in relationship property disputes compared with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and it is argued that an adequate understanding of this difference requires us to grapple with the underlying foundations of the New Zealand law, which were left open during the Court of Appeal's development of the doctrine.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

scholarly journals UNTANGLING THE REQUIREMENT OF GOOD FAITH IN THE DERIVATIVE ACTION IN COMPANY LAW (Part 1)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Maleka Femida Cassim
Keyword(s):  
Company Law ◽  
Good Faith ◽  
The Other ◽  
Comparative Approach ◽  
Complex Issue ◽  
High Court ◽  
Legal Principle ◽  
The Supreme Court ◽  
Court Of Appeal

A crucial prerequisite for a derivative action is that the applicant must be acting in good faith in terms of section 165(5)(b)(i) of the Companies Act 71 of 2008 in order to obtain the leave of the court to bring the proposed derivative action. Both the Supreme Court of Appeal and the High Court have recently made important pronouncements of legal principle on the approach that the courts would take to the determination of good faith for the purposes of the statutory derivative action under section 165 of the Companies Act. These judicial findings relate not only to the complex issue of how to prove good faith but also to the meaning and content of the requirement of good faith. The courts have now reached a crossroads in delineating the content of good faith and how it is to be proved. This two-part series of articles critically evaluates these judicial pronouncements. While the focus of these articles is mainly on the tangled requirement of good faith, relevant judicial findings on the other prerequisites for a derivative action under section 165(5)(b) read with (7) and (8) of the Companies Act are also discussed. A comparative approach is adopted that takes into account the jurisprudence developed in Australia, Canada and Singapore. This article, the first in the series of two articles, focuses on the test of good faith. The proof of good faith will be discussed in the second article.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

‘Arrest, Arrest, Arrest’

2021 ◽  
pp. 283-315
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Human Rights Law ◽  
High Court ◽  
Legal Standards ◽  
Everyday Work ◽  
The Face ◽  
Court Of Appeal ◽  
Police Practices

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.

Part IV Practice and Process, Ch.21 Standards of Review in Constitutional Review of Legislation

2018 ◽  
Author(s):  
Kiefel Susan
Keyword(s):  
Individual Rights ◽  
Constitutional Review ◽  
High Court ◽  
Legislative Power ◽  
Court Of Appeal

This chapter explores the High Court's jurisdiction in Australia to review legislation for constitutional validity. Every Australian court of competent jurisdiction has the power to declare a law of the Commonwealth or of a State void because of transgressing the Constitution. The High Court, which is the ultimate court of appeal in Australia, is the authoritative and final interpreter of the Constitution. Though this authority is not expressly stated in the Constitution, it can be discerned through various sources. Furthermore, the methods of review vary according to both the nature of the constitutional head of power under which legislation is said to have been enacted, as well as whether the challenge to the validity of the legislation is based upon its restrictive effect upon a constitutionally protected freedom. These freedoms are not individual rights or freedoms, but instead effect a restriction or limitation on the legislative power of the Commonwealth.

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