Lessons from Malawi’s Fresh Presidential Elections of 23 June 2020

2020 ◽  
Keyword(s):  
Executive Committee ◽  
Presidential Election ◽  
Presidential Elections ◽  
Electoral System ◽  
International Institute ◽  
High Court ◽  
Regional Trends ◽  
The Supreme Court ◽  
Electoral Management Bodies ◽  
Court Of Appeal

On 3 February 2020, the High Court of Malawi sitting on constitutional matters nullified the presidential election that was held on 21 May 2019. That decision was upheld by the Supreme Court of Appeal on 8 May 2020. Various reforms were ordered by the courts and legislated by Parliament, most notably a change in the electoral system, from a simple majoritarian, or first-past-the-post (FPTP), system to a two-round system where the winner must receive over 50 per cent of the votes. A fresh presidential election was held on 23 June 2020 under the supervision of a new commission, and Malawi made history in Africa on 27 June when the opposition candidate was announced victorious in the fresh presidential election. The repeat election was held in a largely peaceful environment, and the Malawi Electoral Commission (MEC) did not receive any complaints following the announcement of the result. Given the remarkable events that took place in Malawi, the Executive Committee of the Electoral Commissions Forum of SADC countries (ECF-SADC) recommended that the MEC should be given the opportunity to share its experience regarding the fresh presidential election of 23 June 2020 with other member commissions. The ECF-SADC in collaboration with the International Institute for Democracy and Electoral Assistance (International IDEA) organized a webinar on 31 August 2020 to strengthen peer review among electoral management bodies (EMBs) in the region of the Southern African Development Community (SADC). The webinar provided a platform for peer-learning concerning both the conduct of the fresh presidential election in Malawi and emerging regional trends in electoral justice.

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 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.

Legal and Constitutional Changes in Nigeria Under the Military Government

1966 ◽  
Vol 10 (2) ◽  
pp. 92-105 ◽  
Author(s):  
E. A. Keay
Keyword(s):  
Public Service ◽  
Collective Responsibility ◽  
Military Government ◽  
High Court ◽  
The Supreme Court ◽  
Service Commission ◽  
The Military ◽  
Court Of Appeal ◽  
Public Service Commission ◽  
Constitutional Changes

Prior to the events which began on January 15th, 1966, Nigeria was a Federal country consisting of four Regions and the Federal Territory of Lagos (a small area including the capital and adjoining areas). Each Region had its own Constitution providing for a bicameral legislature; a Westminster-type ministerial system and cabinet with collective responsibility; a Regional High Court, from which restricted appeal lay to the Supreme Court of Nigeria; a Regional public service with power of appointment and dismissal vested in an independent Public Service Commission; and over all a Governor whose functions were those of a constitutional Head and carefully spelt out in the Constitution. In addition, the North's Constitution provided for the Sharia Court of Appeal, a court of status coordinate with that of the High Court and having exclusive and final appellate jurisdiction in civil cases based on Moslem family law.

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

scholarly journals SOME CLARITY ON THE ACCRUAL OF LIVING ANNUITIES AT DEATH OR DIVORCE CM v EM (1086/2018) [2020] ZASCA 48; [2020] 3 All SA 1 (SCA); 2020 (5) SA 49 (SCA) (5 May 2020)

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Eben Nel
Keyword(s):  
The Other ◽  
Investment Performance ◽  
High Court ◽  
Life Annuity ◽  
The Supreme Court ◽  
Form Part ◽  
Term Insurance ◽  
Definition Of ◽  
Court Of Appeal

A conventional life annuity is a contract in terms whereof an annuity underwriter guarantees a periodical payment to an insured in exchange for an initial non-refundable premium. The insurer pools all the annuity premiums together and assumes both the investment performance and the mortality risk by way of actuarial comparisons. The annuitant’s income is guaranteed for life or for a minimum period.Living annuities on the other hand are regulated by the Long-Term Insurance Act 52 of 1998 and are market-linked investments (with no income guarantee) in respect of which the annuitant annually chooses the drawdown rate – currently between 2.5 and 17.5 per cent per annum (compare Regulations in terms of s 36 of the Pensions Act 24 of 1956 and s 106(1)(a) read with s 108(1) of the Financial Sector Regulation Act 9 of 2017.) When an annuitant dies, the death benefit is payable to a nominated beneficiary or the estate of the insured. A pension-interest benefit is an asset for the purposes of the division of an estate at divorce, and includes both pension and provident funds. Living annuities, however, do not fall within the definition of “pension interest” as defined in s 1 of the Divorce Act.In CM v EM ((1086/2018) [2020] ZASCA 48; [2020] 3 All SA 1 (SCA); 2020 (5) SA 49 (SCA) (5 May 2020)), the Supreme Court of Appeal, in an appeal from the full court of the Gauteng Division of the High Court, sitting as court of appeal, had the opportunity to determine where the ownership of capital invested in the form of a living annuity vests, as well as whether the value of an annuitant spouse’s right to future annuity payments is an asset in his or her estate and therefore subject to accrual. Accrual in respect of an estate is the amount by which the net value of the estate at the dissolution of a marriage exceeds the net value of that estate at the commencement of the marriage. At the dissolution of a marriage owing to death and subject to the accrual system, the spouse whose estate shows no accrual, or a smaller accrual than the estate of the other spouse, has a claim against the other spouse or his or her deceased estate.It is submitted that some implications of the accrual dispensation, particularly within the context of certain pension and financial products, are still in their discovery phase, nearly 40 years after their introduction. In the absence of any reference to a living annuity in an antenuptial contract, the question was always whether such an investment is subject to the accrual system at divorce or death. In the context of a life assurance policy, the surrender value of the policy was taken into account in the event of divorce, but in the event of death, the question was whether, for accrual purposes, the factor taken into account should be the surrender value or the policy proceeds. As only assets that form part of the estate of a spouse can be considered for accrual purposes, the very nature of a living annuity had to be investigated in the matter of CM v EM (supra). This case was an application for special leave to appeal from the full court in the matter of Emilio Pietro Valfredo Montanari v Charmaine Helen Montanari (Montanari v Montanari).

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