Browsing by Author "Paleker, Mohamed"

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    Bekker v Naude: The Supreme Court of Appeal settles the meaning of 'Drafted' in Section 2(3) of the Wills Act, but creates a potential constitutional problem
    (Juta Law, 2004) Paleker, Mohamed
    In Bekker v Naude en andere 2003 (5) SA 173 (SCA) the Supreme Court of Appeal ended the long-raging debate in our courts regarding the meaning of the word 'drafted' in s 2(3) of the Wills Act 7 of 1953. In this note I shall trace the events leading up to the court's decision and discuss certain constitutional issues raised by the judgment.
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    Enhancing access to justice in Zimbabwe: an empirical exploration of integrating socially appropriate dispute resolution to overcome barriers within the formal justice system
    (2024) Maraire, Wesley; Paleker, Mohamed
    Colonialism introduced common law in Rhodesia (now Zimbabwe). The colonial regime subsequently relegated indigenous laws, rules, and epistemologies to the status of informality, except for those that did not offend European notions of justice and morality. Despite colonial onslaughter, relegated ways of life continued guiding the majority Black population, albeit informally. This established Zimbabwe as a plural legal country. Against this background, this study explores factors impeding citizens from accessing the formal justice system, preventing them from obtaining outcomes they consider fair. Semistructured interviews with diverse legal professionals revealed a range of barriers preventing citizens from obtaining effective access to justice. Research participants identified the colonial common law system, with its emphasis on general law courts and litigation as a significant barrier to access to justice for the majority Black African population, whose traditional approaches to dispute resolution contrast with this adversarial system. Consequently, most citizens rely on non-state dispute resolution platforms that lack the force of law. This thesis also explores various ways of enhancing access to justice for citizens, including the poor and small businesses in Zimbabwe. The data revealed that the most significant solution is embracing normative conceptions of law, justice, and institutionalising socially appropriate dispute resolution processes that are culturally and geographically close to the people. Throughout the thesis, case studies, primarily from Australia and South Africa provide a comparative lens for analysing the empirical data. These countries share a history of British colonial rule and have set a path to extend access to justice to Indigenous populations, which provides a blueprint for Zimbabwe. This thesis concludes by drawing together empirical data and process theory to develop a justice system that overcomes Zimbabwe's current access to justice challenges.
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    Inheritance and redistribution: exploring the constitutional commitment towards redistribution in the private law of succession
    (2021) Cogger, Jonathan; de Vos, Pierre; Paleker, Mohamed
    The inevitability of the death of all property owners means that the redistribution of property at death is a basic function of the law of succession. In the systems that recognise testamentary freedom (including South Africa), the right to distribute property after death is considered as a natural extension of the entitlements that an owner enjoys while alive. Testamentary freedom is an age-old common law principle that has formed part of our law since time immemorial. This right vests in individual owners, and courts (and functionaries of the state) are obliged to give effect to the clear intentions of testators as expressed in their wills. Ownership therefore forms the basis of the right to make testamentary disposals that become enforceable after death. In this way, a primary role of testate succession law is to extend the rights of owners after death. The question this thesis seeks to answer is whether the common law right to dispose of property after death is a constitutionally protected property right in light of constitutional commitments to redistribution, restitution and historical redress. This involves an interpretation of the nature, purpose and scope of section 25 of the Constitution in the context of the common law of testate succession. In this thesis, I critique the academic and judicial view that ownership is central to the constitutional protection of the common law principle of freedom of testation. I argue that the current interpretation of the property clause represents a one-dimensional view of property rights that ignores accepted constitutional property jurisprudence of the interpretive approach to the property clause, including its dual purpose in protecting as well as transforming property relations and the emphasis on our historical context of past discrimination. In essence, my thesis is a critical evaluation of the nature and scope of testamentary freedom for the purposes of justifying the redistribution of wealth and property at death. My ultimate goal is to show that the redistribution of property through inheritance law is politically and constitutionally justified.
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    The efficacy of jury trials in the South African civil justice system
    (2021) Parker, Rukshana; Paleker, Mohamed
    In classical terms, democracy is synonymous with direct participation. However, as states grew and direct public participation became more difficult, a more minimal concept of democracy associated with enfranchisement was adopted. Democracy, however, should not be limited to the enfranchisement of the masses. It ought to include some level of direct public participation in branches of the government such as the judicial system.
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    The international protection of language rights
    (1996) Paleker, Mohamed; Fagan, E
    Speakers of more than six thousand languages are not entitled to education, nor to the administration of justice or public services through the medium of their mother tongue(s). This statement is true of most indigenous language minorities and universally of migrant, immigrant or refugee minorities. Many minority language groups are punished for speaking their mother tongue, both physically as well as psychologically and economically. While the overwhelming majority of minority language groups remain at the cutting edge of linguistic discrimination, some national and regional minorities (e.g. in Belgium, Canada, Finland, India, and Switzerland) by contrast, are empowered to exercise at least some of their basic linguistic rights.
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    The intersection between the Islamic law of inheritance and the South African law of succession
    (2022) Essop, Fatima; Paleker, Mohamed
    While Muslims constitute 2% of South Africa's population, they formed an integral part of the South Africa's socio-political and historical landscape for over 350 years. Despite their historical marginalisation, in post-apartheid South Africa there are still no legislative provisions recognising Muslim personal law – even though the Constitution of the Republic of South Africa, 1996 (the Constitution) makes provision for such legislation to be enacted. Consequently, Muslims have been practicing their Islamic family laws of marriage, divorce, and inheritance within the private sphere, facilitated, and regulated by community-based Muslim judicial bodies, and their affiliated clergy (Shaykhs and Imāms). The thesis seeks to identify how Muslims in Western Cape include and implement Islamic inheritance laws in their wills and estates. A socio-legal methodology was adopted to study Islamic inheritance laws as they occur in practice. Empirical research was conducted in the Cape Town metropole area of the Western Cape as it has the largest, oldest, and most established Muslim community in South Africa. I conducted qualitative interviews with various role players, including an official at the main Muslim judicial body in the Western Cape, attorneys involved in the drafting of Muslims' wills and the winding up of Muslims' estates, and an Assistant Master of the High Court (responsible for the probate of all estates). I also conducted a document analysis of Islamic wills stored on record at the main Muslim judicial body in the Western Cape. The data extrapolated from my research identified various legal challenges encountered by people implementing the Islamic inheritance laws within the context of the existing common law and statutory laws of succession framework. These include the contravention of certain black letter common law rules of succession, for example, the prohibition against incorporation by reference and delegation of testamentary powers. In this regard, the thesis recommends that our courts should develop the common law to give expression to a Muslim testator's freedom of testation to devolve his or her estate in accordance with the constitutional guarantees of freedom of religion (s15) and right to property (s25). The thesis identifies potential conflicts that may arise between the provisions of Islamic inheritance law and the rights enshrined in the Constitution, such as the rights to equality (s 9) and dignity (s10). It hypothesises how the courts should balance various constitutional and common law rights in accordance with prevailing values of public policy. The thesis cautions the courts to be circumspect when striking down provisions in private wills so as not to infringe the constitutional rights to privacy (s14), dignity and property of a testator. Aside from the empirical research, the thesis relies on a broad spectrum of local and foreign literature in its discussion of both Islamic law and South African law. It provides an overview of the foundations of Islamic law generally, as well as Islamic laws of marriage, divorce, and inheritance. This overview contextualises the empirical research so that concrete suggestions for reform can be made. The thesis concludes with recommendations for the future implementation of Islamic inheritance laws by relevant role players.
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    The re-engineering of South African small claims courts
    (2018) Paleker, Mohamed; Schwikkard, Pamela Jane
    The thesis argues for the retention and reform of the small claims courts. It considers the evolution of the small claims courts since their establishment in 1985, and the steps taken by the Government since 1994 to revitalise the courts to strengthen access to justice. The thesis also considers the management of the courts; the recruitment and qualifications of presiding officers; the rules of jurisdiction and locus standi; the processes and procedures of the courts; and the potential for introducing alternative dispute resolution (mediation). The thesis relies on a broad spectrum of local and foreign literature, the South African common law and statutes, as well as comparative research to argue for the reform of the courts and in particular, the Small Claims Courts Act 61 of 1984 and the Rules Regulating Proceedings in the Small Claims Courts. The small claims courts’ legislation is interrogated and concrete amendments are suggested. Arguments for reform are bolstered by official statistical data sourced from the Department of Justice. The study reveals that significant improvements must be made to the legislation governing the courts. The thesis establishes that the legal rules of jurisdiction and locus standi require a fundamental overhaul. While the thesis is complimentary of certain aspects of the processes and procedures of the courts – for example, the inquisitorial style of conducting a trial and the relaxation of the rules of evidence – it identifies a host of problems that impede access to justice, such as the lack of technology in the courts, cumbersome processes, and the presence of procedures that hinder justice because they are difficult to apply in practice. With regard to the management of the courts, the thesis recommends several steps to improve service delivery and proposes a new organisational framework for court management. The recommendations are easy to implement, with minimum cost to the State. The current regime of recruiting volunteer practitioners to preside in the courts is supported. However, experience shows that there is need to appoint a pool of magistrates to service the courts. In accordance with international trends, mediation in the courts is recommended. The thesis explains how and when mediation should be used to resolve disputes.
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    When parents die: locating children's right to economic security in South Africa's law of succession and guardianship
    (2021) Cheng, Grace; Paleker, Mohamed
    South Africa's era as a constitutional democracy has coincided with the recognition of children as independent rights-holders within its legal system. Signature and ratification of the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) demonstrated the Republic's commitment to children's rights on the international stage. South Africa's Constitution features a dedicated section on children's rights, and enshrines the principle that the best interests of the child are ‘of paramount importance' in every matter concerning the child. Whereas Roman-Dutch and English law historically conceptualised children as their parents' property or as conduits of family property, children today enjoy enforceable legal rights to property and material support. South African law has decisively deemed the interests of children worthy of constitutional protection as legal rights. Children's rights encompass both their need for protection and their right to autonomy. In the celebrated words of Justice Sachs, in contemporary South Africa every child is to be ‘constitutionally imagined' as an individual with inherent dignity, ‘not merely as a miniature adult waiting to reach full size' or ‘a mere extension of his or her parents, umbilically destined to sink or swim with them.'