1,720,967 research outputs found
Does the South African Pension Funds Adjudicator perform an administrative or a judicial function?
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Exploring the Obligations to Complete Insurance Reforms in Lesotho
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In 2014, Lesotho reformed the insurance business sector by adopting the Insurance Act 12 of 2014 and repealing the Insurance Act 18 of 1976. These reforms resulted from the government’s recognition that the Insurance Act of 1976 was outdated and not in keeping with modern insurance principles and practices. This state of affairs made it difficult for the government to regulate and supervise insurance companies. However, in 2019, the Revenue Appeals Tribunal (Tribunal) decided an important case that revealed that the executive branch had not fully implemented these reforms through the Central Bank of Lesotho. In the Insurance Act of 2014, the Central Bank of Lesotho is defined as the Commissioner. There are gaps in the Insurance Act of 2014. This article investigates the gap in the insurance legislation identified by the Tribunal and the obligations of the Commissioner to complete the reforms. It argues that the Commissioner is compelled to fill this gap in the law for at least two reasons. First, the Commissioner has national and international legal obligations to define funeral insurance policies and fully implement the insurance reforms. Second, it is submitted that with the advent of the Pension Funds Act 5 of 2019, the need to complete the insurance reforms is even more significant because this will enable pension funds to cost-effectively procure long-term insurance products, such as funeral benefits, for the advantage of their members and their members’ beneficiaries
Removal of the National Director of Public Prosecution: A Critique of Emerging Constitutional Jurisprudence
No full textIn this article, I critically examine the constitutional provisions governing the removal of the National Director of Public Prosecutions. This examination is undertaken in the context of recent decisions by the High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23, which found certain provisions of the National Prosecuting Authority Act 32 of 1998, which governs the removal of the National Director, unconstitutional. The article is critical of these two court decisions for their failure to properly justify the order to invalidate the provisions of the National Prosecuting Authority Act and to provide a proper account of the different separation of powers imperatives involved in the cases. The article is also critical of the Constitutional Court’s approach to the abstract review of the sections in the National Prosecuting Authority Act, and of its suspension of the order of invalidity in a manner which took no due regard to established jurisprudence. Lastly, the article is critical of the Constitutional Court’s omission to address the High Court order that the Deputy President should appoint the National Director, which runs counter to the text of the Constitution
Rejecting the Myth of Austin v. Owens-Brockway Glass Container: Exalting the Vitality of Gardner-Denver and the Distinction Within Gilmer
Full text linkRecognizing a Right to Autonomy for Ethnic Groups under the African Charter on Human and Peoples’ Rights: Katangese Peoples Congress v. Zaire
Full text linkChief Justice Sandile Ngcobo’s Separation of Powers Jurisprudence
No full textThis article examines Justice Ngcobo’s profound contribution to the development of the foundational jurisprudence on separation of powers in South Africa. The article is premised on the fact that Ngcobo can be better understood in the context of his contribution to the foundational jurisprudence. In this way, we will better comprehend how Ngcobo’s jurisprudence fits into our contemporary understanding of the Constitution. The key question this article seeks to investigate is to what extent has Ngcobo’s jurisprudence on separation of powers has impacted or shaped South African constitutional law. The article specifically investigates whether, in his contribution to the constitutional jurisprudence on separation of powers, Ngcobo developed a political question doctrine theory for South Africa. I find that he did, and that while Justice Ngcobo’s political question jurisprudence was not clearly articulated or endorsed by the majority of the Justices while he was on the bench, the Constitutional Court has recently unanimously endorsed some of his political question doctrine theories and arguments thereby crystallising the political question theory in South Africa. The article examines Ngcobo’s contribution through the lens of the judgments that he penned as well as his academic commentarie
Between separation of powers and justiciability: Rationalising the Constitutional Court’s judgement in the Gauteng E-tolling litigation in South Africa
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Separation of powers and the political question doctrine in South Africa : a comparative analysis
Full text linkSection 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope
of judicial authority as encompassing the resolution of any dispute that can be resolved
by the application of law. The courts in South Africa have developed several
justiciability canons that restrain when courts may adjudicate disputes, such as
standing, mootness, ripeness, and the prevention of advisory opinions. These
justiciability canons emanate from constitutional considerations such as respect for
separation of powers and the proper role and scope of judicial review in a constitutional
democracy.
This study focuses on another justiciability canon - the political question doctrine. This
doctrine arises from the principle of separation of powers and, in the main, provides
that certain questions of constitutional law are allocated to the discretion of the elected
branches of government for resolution. As a result, such questions are non-justiciable
and require the judiciary to abstain from deciding them because not doing so intrudes
into the functions of the elected branches of government. The underlying theme is that
such questions must find resolution in the political process.
Through a comparative lens, the study examines the origins and current application of
the political question doctrine in selected countries with a view to obtain lessons
therefrom. It examines the origins of the doctrine, by placing particular emphasis on
the early application of the doctrine by the US Supreme Court. The study also
examines the modern application of the doctrine in the constitutional jurisprudence of
several countries, including Ghana, Uganda and Nigeria. It advances the view that
while the doctrine exists in the South African jurisprudence, the Constitutional Court
should articulate and develop it into a clear doctrine taking into account lessons from
those countries. The study offers some recommendations in this regard.
The study submits that the political question doctrine is an appropriate legal
mechanism through which the South African judiciary can address the recent problem
of the proliferation of cases brought to the courts that raise non-justiciable political
questions and threaten to delegitimize the role of the courts in a democracy.LL. D.Public, Constitutional and International La
The powers of the South African public protector : a note on economic freedom fighters v speaker of the national assembly
Full text linkThe scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.https://brill.com/view/journals/ajls/ajls-overview.xmlhj2022Jurisprudenc
How could the pension funds adjudicator get so wrong? A critique of Smith versus Eskom Pensiion and Provident fund
Full text linkNotesIn this case note the judgment in the Smith case is criticized for being inconsistent with
the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded
the matter in Smith to the Board and ought to have ordered it to re-examine its
discretion with a focus on a set of factors. Some of the negative effects of Smith on the
pension funds industry are also outlined. While the authors express their understanding
that the Adjudicator's decision in Smith was made with the rights of women in mind, they
believe that her reasoning was wrong. She may have arrived at the same decision on
different reasoning. In order to prevent the negative effects of Smith on the pension
funds industry, it is recommended that the Adjudicator, when given an opportunity,
should overrule the precedent set in Smith. Failure to do so would create the risk of the
inconsistent application of the term "spouse" under South African law, or at the very
least in relation to acts of Parliament administered by the National Treasury, which may
potentially violate the equality provisions of the Constitution
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