Faculty of Law

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The faculty's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law

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Community Law Centre
South African-German Centre for Development Research and Criminal Justice

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Trust deeds as ‘constitutive charters’ and the variation of trust provisions: a South African perspective

du Toit, Francois (Oxford University Press, 2013)

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Abstract:

In this article, I assess the constitutive status accorded to trust deeds in Potgieter v Potgieter and Pascoal v Wurdeman, two recent South African judgments on trust variation. In particular, I analyse judicial condemnation of invoking reasonableness or fairness as free-standing norms to refashion the terms of trust deeds outside established common law or statutory norms; and I illustrate the place and role that equitable considerations play in South Africa as components of existing aggregated legal rules on trust variation. I also test the judicial approach taken to the foundational nature of trust deeds in the aforementioned judgments against the status accorded to trust instruments and documents by the Trust Property Control Act—a statute that regulates aspects of trust law in South Africa.

URI:

http://hdl.handle.net/10566/624

Files in this item: 2

DutoitTrustdeeds2013.pdf (148.0Kb)

DutoitTrustdeedsPublished2013.pdf (81.19Kb)

Co-trusteeship and the joint- action rule in South African trust law

du Toit, Francois (Elsevier, 2013)

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Abstract:

This article examines the fundamental rule of South African trust law that co-trustees must always act jointly in regard to trust administration. It highlights the rule's foundation, but also contextualizes some of the practical problems associated with the rule's operation. In particular, the article focuses on South African courts' treatment of the joint-action rule, and shows that judicial engagement with the rule has not been satisfactory in all respects. The article casts some light on possible future developments in regard to co-trusteeship in South African law.

URI:

http://hdl.handle.net/10566/620

Files in this item: 2

duToitCo-trustees2013.pdf (113.6Kb)

DuToitCo-trusteeship2013.pdf (216.6Kb)

The role of constitution making and institution building in furthering peace, justice and development: South Africa’s democratic transition

Powell, Derek (Oxford University Press, 2010)

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Abstract:

The international community accepts that peace, justice and development are indivisible properties of human freedom and thus wants a more coordinated approach to post conflict recovery. Today, transitions to democracy are typically launched through constitutional negotiations and anchored in efforts to fix broken state institutions or create new ones. These are settled strategies for addressing the social and economic causes of conflict in troubled societies. Transitional justice (TJ) has been slow to appreciate or capitalize on the inherent potential of these political processes to further justice and peace. By not taking a wider view of the opportunities for change that are presented by the transitional moment, TJ limits its capacity to construct the institutions that must work if a return to conflict is to be prevented. With this in mind, prominent practitioners have begun to look at how to extend TJ’s brief to include a wider set of issues linked to social justice. They are also looking for concepts and tools to bridge the divide between the field and related disciplines. This article presents South Africa’s transition as a case study of this wider view and is written from the perspective of a practitioner who was involved in building the post-apartheid democratic state. It aims to contribute to the current debate about TJ’s stake in post conflict transitions.

URI:

http://hdl.handle.net/10566/610

Files in this item: 1

PowellTransitionalJustice2010.pdf (275.6Kb)

The CRC in South Africa 15 years on: does the new Child Justice Act 75 of 2008 comply with international children’s rights instruments?

Wakefield, Lorenzo (Queens University, Belfast School of Law, 2011)

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Abstract:

Article 40 of the United Nations Convention on the Rights of the Child1 requires states parties to take appropriate measures to ensure that children accused of committing offences are treated in a manner that would ensure that their best interests are upheld. South Africa2 ratified the CRC in 1995, the provisions of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the Constitution stipulates that children may not be detained, except as a measure of last resort and, should they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies with the international standards set by the CRC (15 years after SA ratified it); the general comments by the United Nations Committee on the Rights of the Child 3 and other non-binding, yet persuasive instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant steps to comply with its international obligations when it domesticated the CRC in relation to children who commit offences.

URI:

http://hdl.handle.net/10566/598

Files in this item: 1

WakefiledChildJusticeAct2011.pdf (228.2Kb)

Does the differential criterion for vesting parental rights and responsibilities of unmarried parents violate international law? a legislative and social study of three African countries

Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L. (Cambridge University Press, 2011)

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Abstract:

The right to non-discrimination for all children is established in international human rights law. International children’s rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children’s rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.

URI:

http://hdl.handle.net/10566/577

Files in this item: 1

Sloth-NielsenParentalRightsReponsibilities2011.pdf (156.3Kb)

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