scholarly journals Bokolo v S 2014 (1)sacr 66 (sca): The practicality of challenging dna evidence in court

2015 ◽  
Author(s):  
Emma Charlene Lubaale
Keyword(s):  
Supreme Court ◽  
Active Role ◽  
Case Note ◽  
Scientific Validity ◽  
Dna Evidence ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
The Ideal

The techniques used in DNA profiling are well established and scientifically validated. The scientific validity of DNA evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. Thus, the incorrect use of DNA evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. Drawing from the Supreme Court of Appeal decision in Bokolo v S (Bokolo case), this case note discusses how DNA evidence can be placed in its proper forensic context. The article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating DNA evidence.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals THE ROLE OF REMORSE IN SENTENCING

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Pieter du Toit
Keyword(s):  
Supreme Court ◽  
South African ◽  
Deterrent Effect ◽  
The South ◽  
The Supreme Court ◽  
Mitigating Factor ◽  
Court Of Appeal

It has become an established feature of the South African sentencing practice to consider the level of remorse displayed by the accused. Genuine contrition or remorse is generally regarded as a mitigating factor whilst the absence thereof is considered to be an aggravating factor. Our courts link the presence of remorse with the prospect of the rehabilitation of the offender. In S v Seegers (1970 (2) SA 506 (A) 512G–H) Rumpff JA held that remorse, as an indication that the offence will not be committed again, is an important consideration, in suitable cases, when the deterrent effect of a sentence on the accused is considered. This note considers the meaning of “remorse” in the eyes of our courts, the approach of South African courts (in particular the Supreme Court of Appeal) to the role of remorse in sentencing, as well as the question whether the presence or absence of remorse can truly be determined by a court.

Equity & Trusts Law Directions

2021 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Council Decision ◽  
Key Points ◽  
The Supreme Court ◽  
Farming Families ◽  
The Relationship ◽  
Court Of Appeal

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This book explains the key topics covered on equity and trusts courses. The content of the text is designed to emphasise the relationship between equity, trusts, property, contract and restitution to enable students to map out conceptual connections between related legal ideas. There is also a focus on modern cases in the commercial sphere to reflect the constantly changing and socially significant role of trusts and equity. The book starts by introducing equity and trusts. It then includes a chapter on understanding trusts, and moves on to consider capacity and formality requirements, certainty requirements and the constitution of trusts. Various types of trusts are then examined such as purpose, charitable, and variation trusts. The book then describes issues related to trusteeship. Breach of trust is explained, as is informal trusts of land. There is a chapter on tracing, and then the book concludes by looking at equitable liability of strangers to trust and equitable doctrines and remedies. This new edition includes coverage of significant recent cases, including the Supreme Court decision on interest to be paid by tax authorities on monies owed; the Supreme Court decision on the test of dishonesty applicable to civil matters; the Privy Council decision on the division of investment property acquired by cohabitants; the Court of Appeal decisions on Quistclose trusts; fiduciary duties in arms-length contracts; transactions prejudicing creditors; beneficiary anonymity in variation of trust cases; exemption clauses; discretion exercised beyond trustee’s authority; implications of GDPR for trustee disclosures; trustee personal liability; causation and equitable compensation; statutory relief for a professional trustee’s breach of trust; use of proprietary estoppel to reward work undertaken in farming families; costs of seeking court’s directions; injunctions ordered against persons unknown; equitable jurisdiction to rectify agreements.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

scholarly journals A Fresh Perspective on Historical Sexual Abuse: The Case of Hewitt v S 2017 1 SACR 309 (SCA)

2017 ◽  
Vol 20 ◽  
pp. 1-21
Author(s):  
Windell Nortje ◽  
Pieter Du Toit
Keyword(s):  
South Africa ◽  
Sexual Abuse ◽  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Sexual Offences ◽  
Sexual Crimes ◽  
The Supreme Court ◽  
Fresh Perspective ◽  
Court Of Appeal

Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.     

4. Retention of title clauses

2019 ◽  
pp. 54-70
Author(s):  
Eric Baskind
Keyword(s):  
Supreme Court ◽  
Essential Information ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
Influence On Retention

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on retention of title clauses, also known as reservation of title clauses, in sale of goods contracts. It explains how retention of title (or Romalpa) clauses are especially useful in cases where the buyer becomes insolvent and then stresses the importance of properly incorporating a retention of title clause into the contract of sale. The chapter examines the 1976 Romalpa case and its influence on retention of title cases. It considers ‘all-liabilities’ clauses in contracts of sale of goods and concludes by discussing criticisms against retention of title clauses and how, in practice, they might fail. The chapter discusses the 2014 Court of Appeal decision in FG Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd which illustrates the dangers of retention of title clauses which can leave buyers somewhat unprotected and how a degree of balance was reintroduced by the Supreme Court in PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another.

MINGLING THE WATERS

2002 ◽  
Vol 61 (3) ◽  
pp. 575-611 ◽  
Author(s):  
Patrick Polden
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Detailed Examination ◽  
Full Understanding ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal ◽  
Formative Years

Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures.This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.

scholarly journals The Appellate Division has spoken – Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)

2017 ◽  
Vol 14 (2) ◽  
pp. 170
Author(s):  
Ngwaru Maghembe
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
Debt Restructuring ◽  
The Supreme Court ◽  
Financial Obligations ◽  
Credit Agreement ◽  
National Credit Act ◽  
Court Of Appeal

This case note aims to analyse the decision of the Supreme Court of Appeal in Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether being under debt review in terms of the National Credit Act (NCA) should bar sequestration proceedings in the form of an application for the compulsory sequestration of a consumer’s estate. This decision held that a credit provider does not need to comply with the procedure provided for in section 129(1) of the NCA before instituting sequestration proceedings against a debtor, as such proceedings are not proceedings to enforce a credit agreement. The main issues discussed in this article are whether the court was correct in its interpretation of the relevant provisions of the NCA and whether this decision that allows a creditor to sequestrate a debtor who is attempting to meet his/her obligations under debt review, without informing him/her, is consistent with the principle urging consumers to satisfy all of their financial obligations under the NCA. It is submitted by the author that the court was correct in its interpretation of the relevant provisions of the NCA, but may have overlooked how this decision may impact the principle of satisfaction by the consumer of all of his/her financial obligations. It is suggested by the author that amendments be made to force the creditor to give a section 129 notice to the debtor before seeking sequestration of his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration proceedings against the debtor.

scholarly journals On the implementation of the Supreme Court of Russia of article 126 of the Constitution in conditions of destabilization of the socio - economic situation

2014 ◽  
Vol 1 (4) ◽  
pp. 170-174
Author(s):  
S G Pavlikov ◽  
V S Gabasov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Active Role ◽  
Economic Situation ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Russian Constitution ◽  
The Russian Federation

It is proved that under the conditions of modern negative socio - economic situation need to become more active role of the Supreme Court as a body, in accordance with Art. 126 of the Russian Constitution gives clarifications on issues of judicial practice, the adoption of the resolutions of the Plenum of the workings of the courts of General jurisdiction in terms of attempts at encroachment on the sovereignty of the Russian Federation.

scholarly journals Are foreign copyright works protected in Nigeria?

2020 ◽  
Vol 10 (2) ◽  
pp. 238-254
Author(s):  
Bankole Sodipo
Keyword(s):  
Supreme Court ◽  
Copyright Protection ◽  
Trial Courts ◽  
Microsoft Corporation ◽  
The Supreme Court ◽  
Lower Courts ◽  
Appeal Decision ◽  
Judicial Authority ◽  
Foreign Corporations ◽  
Court Of Appeal

Despite Nigeria's treaty obligations, Nigerian courts have, in the last quarter of a century, consistently but erroneously held that the Nigerian copyright statute does not protect copyright works of foreign persons. The purport of the decisions is that foreign persons cannot sue to protect their copyright in Nigeria. Given that the decisions of three trial courts and a Court of Appeal decision were never appealed to the Supreme Court, they arguably remain good precedent. The decisions suggest that foreign direct investors who need copyright protection are exposed in Nigeria. Relying on two of these cases, a leading intellectual property law text echoed this erroneous position. This article demonstrates that the decisions were reached in ignorance of applicable statute. As such, the decisions should not be followed by trial courts irrespective of the rule of binding judicial precedent. The article outlines various mechanisms within the copyright statute that extend the protection of the Nigerian copyright statute to foreign works. This article goes further than previous works. Unlike earlier works, this article suggests the path trial courts should tread, despite the rule of precedent, in distinguishing this line of cases to hold that foreign corporations incorporated in many treaty countries and foreign works emanating from many treaty countries are protected in Nigeria. Unlike earlier works, this article demonstrates that lower courts may refer this issue to higher courts for interpretation and guidance under the case stated procedure. Whilst other works made passing references to the Copyright (Reciprocal Extension) Order 1972 (the 1972 Order), that arguably extends copyright to foreign works under the Copyright Act 1970, none cited judicial authority that held that the 1972 Order made under the repealed Copyright Act 1970 is still valid under the current Copyright Act. None referred to the Interpretation Act that supports this judicial authority. Unlike previous work, this article reveals that if the Microsoft case that is the most significant of these cases is appealed to the Nigerian Supreme Court, the court will extend the time within which the Microsoft Corporation can appeal and reverse Microsoft and the line of cases identified in this article.

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