Law Reform Commission Research Articles

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

“Something has to change”

“Something has to change”

GESKIEDENIS VAN DIE MAN- LIKE EERSGEBOORTEREGSREëL IN DIE INHEEMSE REG DEEL II: ONLANGSE REGSPRAAK

This article explores the recognition of the male primogeniture rule in the customary law of succession. In the first of three parts, part one of the article traces the recognition of the rule in the various decisions of the Appeal Court of the Commissioners' courts. Part two deals with the constitutionality of the male primogeniture rule in terms of recent case law, whereafter the discussion is concluded in part three with an overview of the recommendations of the South African Law Reform Commission in this regard.

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.

Policy Considerations that Could Justify the Enactment of a Crime Victim Compensation Fund in South Africa

It may be argued that the current legal position relating to crime victim compensation is unsatisfactory. It should therefore be asked whether there is a potential alternative for crime victim compensation. Many foreign jurisdictions have elected to enact a statutory compensation fund. In its report on the viability of enacting a similar type of fund for crime victims in South Africa, the South African Law Reform Commission stated that a justification for the establishment of a statutory crime victim compensation fund in South Africa remains absent. This article focusses on the justification issue. To determine whether a fund could be established in the South African context the following two-step approach has been outlined. First, a general theoretical framework must be advanced based on which future statutory reform of the law of delict may be justified. Elsewhere I have already done this by identifying policy considerations which the legislature has used to reform specific areas in the law of delict. These considerations include the risk of harm and the concomitant risk of receiving no compensation if the risk of harm materialises; the promotion of the right to social security and the evidentiary difficulties associated with proving fault (in the form of negligence). The second step towards justification is to establish whether these considerations could also justify the proposed development of the law through the enactment of a crime victim compensation scheme in South Africa.

James Crawford and the Law of State Immunity

Abstract In James Crawford’s later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity (‘ALRC 24’), which led in due course to the Foreign States Immunities Act 1985 (Cth) (‘FSIA’) being passed by the Federal Parliament almost unchanged from Commission’s suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

Legislating consent in sexual relations: How significant is the move to affirmative consent?

There are significant problems with how the justice system responds to sexual violence. This essay discusses some of the Victorian Law Reform Commission’s recent reform recommendations, focusing on affirmative consent. It considers the history of consent reform, beginning with the introduction some 30 years ago of a communicative consent model. It explains why further reform is needed and what affirmative consent is designed to achieve.

Judges as myth-busters: a re-examination of jury directions in rape trials

ABSTRACT The Victorian and New South Wales Law Reform Commissions (‘the Commissions’) have recently heralded jury directions as a solution to ‘counter and correct’ rape myths in the courtroom. The Commissions recommended several new directions and espoused considerable optimism in their power to transform rape trials. These recommendations are driven by an unscrutinised rationalist agenda, which assumes that rape myths can be corrected. In response, this article maps out an empirical and theoretical re-examination of jury directions and their ability to ‘counter’ rape myths. This article draws on the theoretical works of Pierre Bourdieu and Roland Barthes to scrutinise this construction of myths and the assumption underpinning the recommendations. By doing so, this article argues that the confidence espoused by the law reform bodies is misguided.

GESKIEDENIS VAN DIE MANLIKE EERSGEBOORTE- REGSREëL IN DIE INHEEMSE REG DEEL III: VOORSTELLE VAN DIE SUID-AFRIKAANSE REGSKOMMISSIE

In Part III of this article various statutory implications for and recommendations of the South African Law Reform Commission regarding the male primogeniture rule in the customary law of succession are examined. From the discussion it seems clear that a partial unification of the customary law of succession and the common law is envisaged, in so far as it relates to the inheritance of property. In its most recent proposal the South African Law Reform Commission recommended the reformation of the customary law of succession in legislation aimed at the harmonization of the customary and common law, with the retention of some customary aspects. On the one hand, the South African Law Reform Commission proposals exclude succession in positions of traditional leadership from the proposed reform, but on the other hand the Traditional Leadership and Governance Framework Act 41 of 2003 promotes the principle of gender equality also with regard to positions in traditional leadership.

DEBT RELIEF FOR CONSUMERS − THE INTERACTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 1)

In March 2002 the Department of Trade and Industry established a task team to review the legislation that has an impact on consumer credit. This resulted in a detailed report containing proposals for a new regulatory framework for consumer credit. Subsequently, in June 2005 the National Credit Bill was tabled in Parliament. Measures aimed directly at resolving over-indebtedness in the form of debt re-arrangement are introduced by the Credit Bill. The report also highlighted weaknesses in the current insolvency legislation especially with regard to available debt relief measures for consumers. It should, however, be noted that the 2000 Insolvency Bill inter alia provides for an alternative to insolvency proceedings in the form of a pre-liquidation composition.This article examines the interaction between current and proposed insolvency and consumer protection legislation with regard to debt relief measures for consumers. The question arises whether the current and the proposed debt relief measures, when introduced, will not overlap unnecessarily. Furthermore, the question whether these measures will provide adequate relief to deal with current demands is also addressed. The South African Law Reform Commission when proposing the pre-liquidation composition in the Insolvency Bill, did not indicate what its relationship should be with the administration order procedure in terms of section 74 of the Magistrates Courts' Act. The question is therefore whether a need for administration orders will still exist if the proposed legislation relating to the pre-liquidation composition is introduced. Lastly, as South African law does not offer debt relief to debtors who have no income and no assets, proposals by the Department of Trade and Industry in the United Kingdom for a non-court based scheme of debt relief aimed at such debtors (the so-called “NINA” cases) are investigated in order to supply guidelines for South African law reform in this regard.It is submitted that the proposals in the Credit Bill on debt re-arrangement could assist debtors to manage their debt in certain circumstances. It is furthermore suggested that a combination of the proposed pre-liquidation composition and a modified administration order procedure could offer the necessary debt relief in situations where a debtor, apart from his debt in terms of a credit agreement, also has other outstanding debts. Finally, it is submitted that the “NINA” scheme could offer some guidance for the reform of South African law regarding debt relief to debtors who have no income and no assets.

Reforming non-consensual sexual offences in Hong Kong: How do the Law Reform Commission of Hong Kong's proposals compare with recent recommendations in other jurisdictions?

In this article, we consider the reforms to non-consensual sexual offences that the Law Reform Commission of Hong Kong (‘LRCHK’) has recently advocated in its Final Report about the law relating to sexual offending in that jurisdiction. We argue that a comparison between the LRCHK's proposals and those supported in recent years by Law Reform Commissions in other jurisdictions – most particularly, in New South Wales (‘NSW’) and Queensland – reveals the LRCHK's recommendations generally to be sensible, balanced and progressive. The LRCHK's approach to the question of what it is to consent, and to the issue of how a person withdraws consent, is preferable to that supported by the NSW Law Reform Commission (‘NSWLRC’). Further, it seems right to have supported an objective culpability requirement for the non-consensual offences with which it was concerned. And while there are difficulties concerning certain of the LRCHK's proposals – especially, perhaps, those pertaining to fraudulently procured sexual activity – the NSWLRC's and the Queensland Law Reform Commission's respective approaches to the last mentioned topic also seem imperfect.

Towards a more uniform approach to parenting coordination in South Africa

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

Towards a more uniform approach to parenting coordination in South Africa

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

DEBT RELIEF FOR CONSUMERS − THE INTERADEBT RELIEF FOR CONSUMERS − THDEBT RELIEF FOR CONSUMERS − THE INTERACTIE INTERACTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 2)CTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 2)

In March 2002 the Department of Trade and Industry established a task team to review the legislation that has an impact on consumer credit. This resulted in a detailed report containing proposals for a new regulatory framework for consumer credit. Subsequently, in June 2005 the National Credit Bill was tabled in Parliament. Measures aimed directly at resolving over-indebtedness in the form of debt rearrangement are introduced by the Credit Bill. The report also highlighted weaknesses in the current insolvency legislation especially with regard to available debt relief measures for consumers. It should, however, be noted that the 2000 Insolvency Bill inter alia provides for an alternative to insolvency proceedings in the form of a pre-liquidation composition. This article examines the interaction between current and proposed insolvency and consumer protection legislation with regard to debt relief measures for consumers. The question arises whether the current and the proposed debt relief measures, when introduced, will not overlap unnecessarily. Furthermore, the question whether these measures will provide adequate relief to deal with current demands is also addressed. The South African Law Reform Commission when proposing the pre-liquidation composition in the Insolvency Bill, did not indicate whatits relationship should be with the administration order procedure in terms of section 74 of the Magistrates Courts’ Act. The question is therefore whether a need for administration orders will still exist if the proposed legislation relating to the preliquidation composition is introduced. Lastly, as South African law does not offer debt relief to debtors who have no income and no assets, proposals by the Department of Trade and Industry in the United Kingdom for a non-court based scheme of debt relief aimed at such debtors (the so-called “NINA” cases) are investigated in order to supply guidelines for South African law reform in this regard. It is submitted that the proposals in the Credit Bill on debt re-arrangement could assist debtors to manage their debt in certain circumstances. It is furthermore suggested that a combination of the proposed pre-liquidation composition and a modified administration order procedure could offer the necessary debt relief in situations where a debtor, apart from his debt in terms of a credit agreement, alsohas other outstanding debts. Finally, it is submitted that the “NINA” scheme could offer some guidance for the reform of South African law regarding debt relief to debtors who have no income and no assets.

Class Actions and Human Rights Litigation in Australia: Realising the Potential

Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.

Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?

In 2014 the South African Law Reform Commission (SALRC)released a Discussion Paper on the practice of ukuthwala. TheDiscussion paper was revised and released again in 2015 toinclude public consultations and the proposed Prohibition ofForced Marriages and Child Marriages Bill (Prohibition Bill). TheProhibition Bill introduces an expanded crime of forcedmarriages and child marriages, including because of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paperinvestigates whether South Africa should criminalise ukuthwalaor not. The paper also examines the advantages anddisadvantages of criminalising breaches of ukuthwala in theprotection of women and girls affected by the practice by drawingupon the field research findings from the community where theS v Jezile 2015 2 SACR 452 (WCC) case originated. Amongother findings, the field research show that the practice ofukuthwala is deeply rooted in the communities where it is stillprevalent to the extent that the approach taken by the ProhibitionBill, expecting the victims to report their own parents or familymembers to law enforcement agents, might force the practice togo underground. Ultimately, we suspect that this might make itmore difficult to protect women and children's rights violationsassociated with ukuthwala. We therefore recommend that toeffectively address the malpractices surrounding ukuthwala, theprocess of law reform look at the elements of ukuthwala, theprocedure that is followed, appreciate the cultural significance ofthe practice, as well as understand the merits and demerits ofthe customary delictual claims that are already used bycommunities where processes of the practice have beenbreached. In this way, communities will be more receptive to anygovernment's efforts that are aimed at addressing forced andchild marriages linked to ukuthwala. In addition, we submit thatunless government prioritises awareness campaigns into thecommunities that are going to be affected by the proposed lawreform, such law, will again be what Himonga calls "paper law".

The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations

When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.

THE AWARDING OF POST-DIVORCE MAINTENANCE TO A MUSLIM EX-WIFE AND CHILDREN IN THE SOUTH AFRICAN COURTS: THE INTERACTION BETWEEN DIVINE AND SECULAR LAW

The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not beseen in isolation, but in conjunction with the other protection possibilities within each of these systems. The apparent conflict between the South African constitutional principles and the principles of Islam is noted and compared to the Indian legal and constitutional experience, although reference is also made to the Algerian legal position. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam.

The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

AbstractThis article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.

THE OFFENCE OF BEING FOUND IN DISGUISE IN SUSPICIOUS CIRCUMSTANCES

The statutory criminal prohibition on the use of disguises in suspicious circumstances has a venerable history in South African law. A form of this offence can be found in the pre-Union legislation (as well as in s 9(2) of Proclamation 27 of 1920 and s 3(2) of Proclamation 5 of 1937 of the former South West Africa). It is noteworthy that there are very few reported cases dealing with the various forms of this offence. Nevertheless it is evident that the offence serves an important function. In its review of various statutes relating to justice, the South African Law Reform Commission comments, in respect of the current formulation of this offence found in section 1 of the Prohibition of Disguises Act (16 of 1969), that “it enables police officers to approach persons in suspicious circumstances, which could prevent crime occurring, for example, masked persons outside a bank”, and consequently it is recommended by the SALRC that the offence should therefore be retained.