Abstract: The United Nations (UN) Convention on the Rights of the Child, 1989 (CRC), the African Charter on the Rights and Welfare of the Child, 1990 (ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children's Act 38 of 2005 (Children's Act) place an obligation on South African courts to determine children's views in their parents' family law matters. This article analyses thirteen judgments stretching from 2003 - 2020 and one 2018 psychological study in relation to parenting plans to ascertain how South African courts determine children's views and wishes in practice. The judgments selected relate to divorces and disputes regarding children's primary residence and care and contact (custody and access disputes), disputes where a parent intends emigrating with children, and matters were a parent abducted a child. The judgments indicate courts have diverging approaches to determining children's views and wishes in family law matters. The 2018 psychological study found legal practitioners unfortunately fail to take into account children's inputs for purposes of drafting their parents' parenting plans. In light of courts' diverging approaches to determining a child's voice in their parents' litigious matters, as well as the current complete lack of guidelines in this regard, there is a need to amend the Children's Act to assist courts with particular regulations or guidelines in this regard. If courts are equipped with guidelines to direct their determination of children's views and wishes in family law matters, this will result in a more certain, and more congruent approach and most importantly, it will assist courts to pay heed to their duty to properly hear the voice of the child.
Abstract: The time and space for the reformation of the Insolvency Act 24 of 1936 has presented itself through the introduction of a constitutional order in 1996. However, the legislature has thus far proven to fail in its responsibility to align consumer insolvency legislation with the values and rights that are contained in the Constitution of the Republic of South Africa, 1996. The Constitution appreciates the vulnerability of children and thus affords special protection to the rights of children, including their rights to social welfare. It further guarantees children that their best interest reign supreme in every matter concerning them. The Constitution also guarantees children the right to human dignity, which right is also a value underlying South African constitutional jurisprudence. These constitutionally guaranteed rights of children to social welfare and human dignity do not enjoy protection under South African consumer insolvency law, particularly in the treatment of arrear maintenance claims of children against the estate of an insolvent debtor. Children's maintenance arrear claims do not enjoy any preference as they are treated as concurrent claims. This also burdens them with the liability to contribute towards the costs of sequestration if they have successfully proven claims and where there are insufficient funds in the free residue account. Children's maintenance arrear debts are not exempt from the discharge of pre-sequestration debt under South African consumer insolvency jurisprudence. The overall approach to the treatment of children's arrear maintenance claims compromises the rights of children to social welfare and human dignity as guaranteed in the Constitution.
Abstract: Cryptocurrencies have become an increasingly popular means of conducting financial transactions globally, and South African banking institutions have not been immune to this trend. However, the pseudonymous nature of cryptocurrency transactions has made it an attractive tool for money laundering activities. In response, there is a growing need for South African regulators to establish a legal framework to regulate the use of cryptocurrency to combat money laundering crimes by banking institutions. While the recent amendments to the Financial Intelligence Centre Act 38 of 2001 (as amended) regarding cryptocurrencies are commendable, it is not without deficiencies. The purpose of this article is threefold. First, it examines the current state of cryptocurrency regulation in South Africa. Second, it explores the vulnerabilities that expose the banking system to money laundering using cryptocurrencies. Third, it highlights the need for further development and implementation of regulatory measures to address vulnerabilities identified in this article. This article argues that the current lack of a comprehensive regulatory framework for cryptocurrencies in South Africa leaves the banking system open to potential abuse. The article suggests that South African regulators should focus on three key areas to combat money laundering activities related to cryptocurrency. First, regulatory measures should be implemented to identify and verify the identities of cryptocurrency traders and investors. Second, measures should be put in place to monitor the flow of cryptocurrency transactions and detect suspicious activities. Third, the digital wallets of crypto users should be managed by South African banking institutions.
Abstract: Cryptocurrencies have become an increasingly popular means of conducting financial transactions globally, and South African banking institutions have not been immune to this trend. However, the pseudonymous nature of cryptocurrency transactions has made it an attractive tool for money laundering activities. In response, there is a growing need for South African regulators to establish a legal framework to regulate the use of cryptocurrency to combat money laundering crimes by banking institutions. While the recent amendments to the Financial Intelligence Centre Act 38 of 2001 (as amended) regarding cryptocurrencies are commendable, it is not without deficiencies. The purpose of this article is threefold. First, it examines the current state of cryptocurrency regulation in South Africa. Second, it explores the vulnerabilities that expose the banking system to money laundering using cryptocurrencies. Third, it highlights the need for further development and implementation of regulatory measures to address vulnerabilities identified in this article. This article argues that the current lack of a comprehensive regulatory framework for cryptocurrencies in South Africa leaves the banking system open to potential abuse. The article suggests that South African regulators should focus on three key areas to combat money laundering activities related to cryptocurrency. First, regulatory measures should be implemented to identify and verify the identities of cryptocurrency traders and investors. Second, measures should be put in place to monitor the flow of cryptocurrency transactions and detect suspicious activities. Third, the digital wallets of crypto users should be managed by South African banking institutions.
Abstract: In 2017, Zambia adopted a new Companies Act. The main purpose of the new Act is to promote the development of Zambia's economy through efficient regulation of companies. This article focuses on the small companies regime that the new Act introduces. More specifically, the article explores the extent to which the new small companies regime is fit for purpose by conducting a comparative analysis of that regime with the United Kingdom's (UK's) small companies regime in light of relevant literature, particularly literature in the field of regulatory economics. Overall, the analysis suggests that Zambia's small companies regime is largely inapt to achieving its intended purpose. The article's main argument in this connection is threefold. First, the new Act is somewhat at odds with its intended purpose insofar as it requires small companies to appoint a secretary. Exempting small companies from this requirement, as does the UK Companies Act of 2006, could better serve the purpose of the new Act. Second, whilst the exemption of small companies from the requirement to appoint auditors may be desirable, the 50 per cent shareholding threshold required for shareholders to demand an audit could inhibit controlling shareholder accountability and thus undermine the purpose of the new Act. A lower threshold such as the one applicable under the UK Companies Act, that is to say, ten per cent, could better serve the purpose of the new Act. Third, the lack of any special treatment for small companies as such vis-à-vis bookkeeping and financial reporting requirements could undermine the purpose of the new Act. Imposing lighter bookkeeping and financial reporting requirements on small companies, as does the UK Companies Act, could better serve the purpose of the new Act.
Abstract: The damage caused by the coronavirus disease (COVID-19) pandemic to the fragile Nigerian economy is incalculable. The Nigerian economy was further weakened by the corruption of government officials involving the palliative measures put in place to provide financial relief to companies and individuals affected by the COVID-19 pandemic. Since the Nigerian economy relies mostly on crude oil revenue, its focus on tax is less emphasised and tax evasion is pervasive. Consequently, the Nigerian tax on gross domestic product (GDP) is only about 6 per cent. This article examines the adequacy of the legal and/or statutory measures aimed at curbing tax evasion in Nigeria. The post-COVID-19 revenue shortfall has made the Nigerian federal and state governments raise the existing taxes, introduce new taxes, and adopt more aggressive tax collection methods. Consequently, taxpayers now use tax exemptions and incentives as devices for tax evasion. Moreover, there is rampant non-remittance of tax proceeds by government ministries, departments, and agencies to the tax authorities. Thus, despite the introduction of various laws, policies, and directives to curb tax evasion, especially after the COVID-19 pandemic, tax evasion challenges still persist. Accordingly, it is submitted that good governance, integrity, and transparency in handling public funds are required to reduce and combat tax evasion in Nigeria.
Abstract: One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.
Abstract: Section 26 of the Insolvency Act 24 of 1936 aims to prevent natural and juristic persons from giving away their assets without receiving any value in return, in circumstances where immediately after releasing such assets they become insolvent. This paper demonstrates that it has not been easy for courts to adequately determine how value should be established for this provision not to apply. Several tests that have been established by courts are discussed with a view to demonstrate the difficulty faced by trustees and liquidators when seeking to set aside transactions in which they believe insolvent persons did not derive value. It will also be shown that the Supreme Court of Appeal crafted a new test that is way too simplistic, which may lead to prejudicial transactions that should otherwise be subjected to judicial scrutiny in terms of section 26(1) of the Insolvency Act being protected from the reach of this provision. This paper argues that there is an urgent need for legislative guidelines on what constitutes value in relation to the pre-liquidation/sequestration transactions to prevent the application of section 26(1) of the Insolvency Act.
Abstract: While the deployment and use of Artificial Intelligence Systems (AIS) have continued to grow at an exponential rate in the world, and they are generally viewed as positive for economic growth and productivity. However, there is a concern about how to hold AIS legally liable and responsible just as a person. This is said against the backdrop that AIS has become indistinguishable from humans and as such they should be entitled to a status comparable to natural persons in order for them to enjoy legal rights and incur liabilities like juristic and natural persons. Especially in the financial sector where the use is ubiquitous in virtually all aspects of the sector from credit assessment to credit rating, credit and loan facilities, customer services, and decision-making for and on behalf of corporations. The situation in South Africa is precarious because, presently, the AIS has not been granted clear legal status in any South African statutes. It is pertinent to point out that while there is no legislative framework dealing specifically with AIS and related legal issues in the financial sector such as the banking industry, a raft of legislation is in place to regulate potential risks posed by the use of AIS in the sector in South Africa. These include legislation in the areas of financial and banking regulations. The problem is the fragmented way the regulations and legislation have been approached. Notably, the financial sector in South Africa uses AIS for their operations and as such sometimes, AIS commits errors, omissions, etcetera, making them eligible for accountability. But the problem still remains that there is no single legislation in South Africa upon which AIS will be held legally accountable save for fragmented pieces of legislative frameworks which have accountability components, but these are not adequate. It is against the backdrop of this specific accountability vacuum for AIS in the financial sector that this article explores germane provisions of the Constitution of the Republic of South Africa 1996 (Constitution) as well as existing fragmented legislative frameworks and foreign law jurisprudence where AIS accountability is well developed and have the potential to hold AIS responsible for their omissions or commission was explored and useful lessons are drawn accordingly.
Abstract: Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.
Abstract: This paper seeks to share some insights on the regulatory aspects of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa. In recent years, policymakers in different countries, including South Africa, have made various efforts to regulate financial inclusion and integrate financial consumers into the financial sector. Similarly, policymakers and other relevant stakeholders have made efforts to promote financial education to empower financial consumers to make sound financial choices and decisions. Notwithstanding these efforts, the promotion of financial education and financial inclusion has been done in isolation, overlooking the policy synergies between these objectives and/or financial sector outcomes in enhancing consumer protection in South Africa. Given the recent COVID-19 pandemic, both financial education and financial inclusion have become increasingly important policy considerations to negotiate the chasm from the challenges that financial consumers faced before the pandemic and move towards safeguarding the economic interests of financial consumers post-pandemic. Accordingly, this paper explores the interrelationship between the effective promotion of financial education and financial inclusion to enhance consumer protection. Moreover, this paper examines the adequacy of the regulation of financial education and financial inclusion under the National Credit Act 34 of 2005 (NCA); the Consumer Protection Act 68 of 2008 (CPA), the Financial Sector Regulation Act 9 of 201 7 (FSR Act) and the proposed Conduct of Financial Institutions Bill (CoFI Bill) in relation to strengthening consumer protection. Put differently, this article focuses on the regulatory nexus of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa. In the end, this article will provide some recommendations and enforcement approaches that could be incorporated into the regulatory framework of the promotion of financial education and financial inclusion to enhance consumer protection in South Africa.
Abstract: The increased usage of digital financial products and financial services such as mobile money brought various challenges and opportunities in Zimbabwe during the coronavirus (COVID-19) pandemic. This has also increased the responsibilities of the regulatory authorities in the Zimbabwean financial sector. The financial regulators were inadequately prepared for the regulatory demands of financial technology (fintech) products in Zimbabwe. For instance, they struggled to cope with the increased responsibilities of overseeing mobile money operators and have adequate resources to efficiently monitor and manage such operators to ensure compliance with the relevant laws. Most Zimbabwean financial regulators did not have sufficient resources to employ persons with the relevant skills and expertise to fulfil their responsibilities. Despite this, the widespread use of mobile money has considerably improved the financial inclusion of the poor and previously unbanked persons, particularly during the COVID-19 pandemic in Zimbabwe. Consequently, various policy implications and mobile money regulatory approaches that were considered by policymakers during and after the COVID-19 pandemic in Zimbabwe in a bid to provide adequate supervision of mobile money operators and related digital financial services to curb the financial exclusion of the poor and unbanked persons are investigated. It is against this background that this article discusses the challenges, policy implications, and flaws affecting the adoption of viable mobile money regulatory approaches to promote financial inclusion of the poor in Zimbabwe after the COVID-19 pandemic.
Abstract: International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.
Abstract: "The voluntary approach to corporate social responsibility has failed in many cases."1 The Mauritius corporate social responsibility (CSR) landscape changed profoundly in 2009 with the addition of sections 50K and 50L to the Income Tax Act 16 of 1995 (Mauritius), making contributions to a CSR fund mandatory. Before 2009, the Mauritius government repeatedly called on the private sector for assistance to overcome unemployment, poverty, and other challenges in their country. Due to an unsatisfactory response to their request and factors such as poverty, and high unemployment levels, the government made the drastic decision to implement mandatory CSR legislation. The main objective of this study was to investigate the factors contributing to the enactment of mandatory corporate social responsibility (CSR) legislation in Mauritius and the possibility to implement similar legislation in South Africa. An analysis of the Mauritius tax legislation and relevant government publications scrutinised, by way of a literature review, revealed that what is referred to as mandatory CSR, is in fact mandatory corporate social investment (CSI). The study further indicated that the same socioeconomic factors as those present in Mauritius prior to 2009 and worse apply to South Africa. An analysis of South African CSI practices and contributions indicated that an additional R3.111 billion could have been raised if a 2 per cent CSI levy was applied to after-tax profits of certain categories of companies, as in Mauritius. This represents 1.2 per cent of the South African Department of Social Development's 2022/2023 budget. It is recommended that similar legislation should be considered for South Africa. It will ensure that all profitable companies in South Africa contribute to CSI and that more funds will be available to address some of the socio-economic needs. The study addressed the gap in empirical research done in Mauritius after 2018 and 2020 and is also the first comparative study conducted on this topic regarding South African law.
Abstract: E-commerce and e-marketing has grown significantly over the past few years. More businesses are moving away from original forms of marketing tools such as newspapers, magazines, billboards and televisions and instead prefer online platforms such as social media. The article focuses on false, misleading and deceptive online marketing representations. It examines the legislative framework that seeks to protect online consumers in South Africa in terms of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act 68 of 2008 (CPA) as well as the Social Media Code¹ of the Advertising Regulatory Board (ARB). It is recommended that although a consolidated statute that makes provision for both offline and online consumers would be ideal, the current provisions in ECTA could also be reviewed to ensure that they are in line with the new developments in marketing trends such as influencer marketing. The Social Code of the ARB is also important to complement ECTA and the CPA, as well as to promote the overall protection of consumers in South Africa.
Abstract: In 2017, Zambia adopted a new Companies Act. The main purpose of the new Act is to promote the development of Zambia's economy through efficient regulation of companies. This article focuses on the small companies regime that the new Act introduces. More specifically, the article explores the extent to which the new small companies regime is fit for purpose by conducting a comparative analysis of that regime with the United Kingdom's (UK's) small companies regime in light of relevant literature, particularly literature in the field of regulatory economics. Overall, the analysis suggests that Zambia's small companies regime is largely inapt to achieving its intended purpose. The article's main argument in this connection is threefold. First, the new Act is somewhat at odds with its intended purpose insofar as it requires small companies to appoint a secretary. Exempting small companies from this requirement, as does the UK Companies Act of 2006, could better serve the purpose of the new Act. Second, whilst the exemption of small companies from the requirement to appoint auditors may be desirable, the 50 per cent shareholding threshold required for shareholders to demand an audit could inhibit controlling shareholder accountability and thus undermine the purpose of the new Act. A lower threshold such as the one applicable under the UK Companies Act, that is to say, ten per cent, could better serve the purpose of the new Act. Third, the lack of any special treatment for small companies as such vis-à-vis bookkeeping and financial reporting requirements could undermine the purpose of the new Act. Imposing lighter bookkeeping and financial reporting requirements on small companies, as does the UK Companies Act, could better serve the purpose of the new Act.
Abstract: In 2017, Zambia adopted a new Companies Act. The main purpose of the new Act is to promote the development of Zambia's economy through efficient regulation of companies. This article focuses on the small companies regime that the new Act introduces. More specifically, the article explores the extent to which the new small companies regime is fit for purpose by conducting a comparative analysis of that regime with the United Kingdom's (UK's) small companies regime in light of relevant literature, particularly literature in the field of regulatory economics. Overall, the analysis suggests that Zambia's small companies regime is largely inapt to achieving its intended purpose. The article's main argument in this connection is threefold. First, the new Act is somewhat at odds with its intended purpose insofar as it requires small companies to appoint a secretary. Exempting small companies from this requirement, as does the UK Companies Act of 2006, could better serve the purpose of the new Act. Second, whilst the exemption of small companies from the requirement to appoint auditors may be desirable, the 50 per cent shareholding threshold required for shareholders to demand an audit could inhibit controlling shareholder accountability and thus undermine the purpose of the new Act. A lower threshold such as the one applicable under the UK Companies Act, that is to say, ten per cent, could better serve the purpose of the new Act. Third, the lack of any special treatment for small companies as such vis-à-vis bookkeeping and financial reporting requirements could undermine the purpose of the new Act. Imposing lighter bookkeeping and financial reporting requirements on small companies, as does the UK Companies Act, could better serve the purpose of the new Act.
Abstract: The Recognition of Customary Marriages Amendment Act 1 of 2021 was enacted to address the proprietary consequences of customary marriages. This note examines the implications of the Amendment Act in light of the Mshengu v Estate Mshengu 9223/2016P judgment, which was decided shortly after the Amendment Act came into effect. Three key issues are analysed: first the potential conflict between the Amendment Act and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 in relation to the ownership of house property; second the challenges in classifying property as house or family property; and third the impact of the devolution of property on the rights of other family members. The analysis emphasises the importance of soliciting input from communities who live according to customary law and highlights the need for legislation that is flexibly drafted to accommodate nuanced customary law practices and provide avenues for redress in cases where statutory provisions yield unfair outcomes.
Abstract: In South Africa, the status of being an unrehabilitated insolvent has many effects and one of them is the disqualification from being a member of parliament (MP). This article considers the constitutional disqualification of unrehabilitated insolvents to serve as MPs within the context of statutory restrictions that apply to such insolvents. It further discusses the rationale for the constitutional disqualification of unrehabilitated insolvents to serve as MPs in light of international guidelines that advocate for the protection of the income of the debtor that is necessary for the insolvent and his dependents to live decent lives taking into account possible changing living standards. The pertinent question is whether such reasons are still justifiable considering international policy considerations
Abstract: A recent case offers an opportunity to consider two types of impeachable dispositions in insolvency law. One is the transfer of a trader's business under section 34(1) of the Insolvency Act, and the other is the common-law actio Pauliana from which the entire law of impeachable dispositions derives. In the first place, the nature of the application is characterised as an attempt to reverse the transfer of the business and assets. A common feature of section 34(1) and the actio Pauliana is spotted: they straddle sequestration or winding-up. Compliance with sections 34(1) and (2) of the Insolvency Act is discussed, and the trader's celebration of doing so is then ruined by the pervasive menace of the actio Pauliana, the defence of necessity supplying a sword to cut the Gordian knot. The central insight of the judgment about section 34(1) - the relative meaning of the word "void" - is shown to be well-articulated by a widely followed juristic insight into administrative validity. Some of the finer details of the ambit of the word "void" are then teased out. The uneasy relationship between section 34(1) and sections 26, 29, 30, and 31 of the Insolvency Act and the actio Pauliana is explored, and an answer to a dilemma over the application of section 34(1) ventured. As for applying the requirements of the actio Pauliana to the facts, a comprehensive, nuanced approach considering both the two relevant possibilities is proposed, rather than the single choice plumped for in the judgment apparently because it is the more usual one. The closing remarks underline the wisdom of thoroughly planning, discussing, and creating a Plan B for the client in the pleadings and executing the procedural requirements and administration.
Abstract: Vicarious liability has been introduced in Scottish environmental law to strengthen the fight against wildlife crime, in particular against birds of prey. Accordingly, landowners can now incur liability for wildlife crime perpetrated by the landowners' employees. Conservation organisations have lauded this development, and this raises the question of whether a similar application of vicarious liability in South African environmental law could enhance the legal conservation status of birds of prey. Vicarious liability is well established in the South African law of delict but is controversial in the context of criminal law. South African environmental law already makes provision for a form of vicarious liability, inter alia also against wildlife crime, but this liability is not strict like the traditional form of vicarious liability known in the law of delict and can accordingly only be referred to as vicarious liability in a wider sense. Unlike traditional strict vicarious liability, which is regarded as undesirable in criminal law by the courts and authors, the wider form of vicarious liability in environmental law may well pass constitutional muster. Nonetheless, the direct liability of a landowner, based on a statutory legal duty to prevent the perpetration of wildlife crime by its employees, would arguably be a more satisfactory solution.
Abstract: Vicarious liability has been introduced in Scottish environmental law to strengthen the fight against wildlife crime, in particular against birds of prey. Accordingly, landowners can now incur liability for wildlife crime perpetrated by the landowners' employees. Conservation organisations have lauded this development, and this raises the question of whether a similar application of vicarious liability in South African environmental law could enhance the legal conservation status of birds of prey. Vicarious liability is well established in the South African law of delict but is controversial in the context of criminal law. South African environmental law already makes provision for a form of vicarious liability, inter alia also against wildlife crime, but this liability is not strict like the traditional form of vicarious liability known in the law of delict and can accordingly only be referred to as vicarious liability in a wider sense. Unlike traditional strict vicarious liability, which is regarded as undesirable in criminal law by the courts and authors, the wider form of vicarious liability in environmental law may well pass constitutional muster. Nonetheless, the direct liability of a landowner, based on a statutory legal duty to prevent the perpetration of wildlife crime by its employees, would arguably be a more satisfactory solution.
Abstract: There has (to date) been no legislation enacted by the South African government that fully recognises marriages concluded in terms of Islamic law (Islamic marriages) as well as the Islamic law consequences that flow from these marriages. Some South African Muslims have opted to conclude marriages in terms of South African law (civil marriages) in addition to their Islamic marriages. This could be referred to as dual marriages. The civil marriages as well as its consequences (not the Islamic law consequences) would then be fully protected in terms of South African law. It is quite interesting to note that s 5A of the Divorce 70 of 1979 authorises a court to refuse the granting of a civil divorce if either of the parties would not be free to remarry subsequent to the granting of the civil divorce. This article analyses how s 5A of the Divorce Act 70 of 1979 applies to dual marriages. It looks at the impact of s 5 A of the Divorce Act on dissolution of dual marriages concluded by Muslims within the South African legal context. The dissolution of Islamic marriages within the South African legal context is looked at by way of introduction. The dissolution of a civil marriage within the context of a dual marriage (couple married in terms of Islamic law and civil law) is then looked at. The article concludes with an overall analysis of the findings and makes recommendations.
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