Postprints (Articles)

Permanent URI for this collectionhttp://hdl.handle.net/2263/51908

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    Who conquered South Africa? Neocolonialism and economic sovereignty
    (University of Wisconsin Press, 2024) Dladla, Ndumiso; ndumiso.dladla@up.ac.za
    The right of conquest is a doctrine in the theory of international law in terms of which victory in war entitles the victor both to the title to territory of the vanquished as well as sovereignty over them. Far from being a mere event, however, conquest is an ongoing process, structure, and relation of domination. Despite the widely celebrated “transition to democracy” and the supposed triumph of popular sovereignty in South Africa in the past three decades, we argue that South Africa’s “democratic” constitutional order remains firmly rooted in the dubious right of conquest asserted since the defeat of its indigenous people in the unjust wars of Western colonization, which began in the mid-seventeenth century. In this article we critically reflect on South African historiography by asking “Who conquered South Africa”? The question is necessary because sovereign power is both misunderstood and obfuscated in South African contemporary history and public discourse. We argue that conquest, and its attendant concepts of sovereignty and war, are deliberately underemphasized in South African historiography despite being at the root of problems regarding economic sovereignty. Our argument considers the problem of succession to conquest, in terms of which both the title to territory and sovereignty over the conquered is transferred from the conqueror to another party who then enjoys these entitlements and powers. We trace various successors in title to Conquest South Africa, and show that their economic power originates in the right of conquest. Their ownership of South Africa’s natural resources originates in the title to territory acquired through its disseisin following the conquest of the indigenous people, and in the same way their continued de facto sovereignty over that population now takes the form of the wanton and relentless exploitation of their labor power.
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    A scoping review of the impact of the COVID-19 pandemic on family wellbeing in Africa
    (Sage, 2025) Chigeza, Shingairai; Fadiji, Angelina Wilson; Matamela, Nyambeni A.; shingairai.chigeza@up.ac.za
    Despite the immense interruptions to relationships and family life during the COVID-19 pandemic, only a few studies explicitly focused on family wellbeing. Therefore, the present study aimed to synthesize current evidence in the African context to provide a state-of-the-art representation of the pandemic's impact on family wellbeing. Using a scoping review, 22 articles on the impact of the COVID-19 pandemic on family wellbeing in Africa were analysed. The results of the study showed a diverse and immense impact of the pandemic on family wellbeing. We noted that there were few studies on this topic and that wellbeing outcomes were measured from a deficit perspective rather than as a positive state of being. The theme of stigma was more pronounced in Western Africa, whereas domestic violence was linked more to Southern African contexts. Furthermore, the economic impact of the pandemic was emphasized in Eastern and Southern African countries than in Ghana and Nigeria in Western Africa. In line with the recommendations from the articles reviewed, a multifaceted policy response is needed to protect family wellbeing. Such interventions need to focus on family functioning, happiness and social wellbeing, and not just reactive and preventative approaches, to promote wellbeing.
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    Circumventing Section 7(8)(a)(I) of the Divorce Act 70 of 1979 and Section 37D of the Pension Funds Act 24 of 1956 through strategic resignation : CNN v NN 2023 (5) SA 199 (GJ)
    (Juta Law Journals, 2024-06) Maloka, Tumo Charles; Ramontja, Koma
    Suppose that the High Court dissolved a couples’ marriage on 14 October 2022 and incorporated the parties’ signed settlement agreement in its order. Unbeknown to the divorce court and the wife, the husband had resigned from his employment and exited his retirement fund on 7 May 2021. This was roughly two months after being served with the divorce summons. For all practical purposes, when the court granted the divorce order, the husband was not a member of a retirement fund. Consequently, he did not have a pension interest from which the ex-wife could be allocated a portion (CNN v NN 2023 (5) SA 199 (GJ) para 4 (‘CNN’)). It transpired that at the time the divorce order was granted, the husband’s pension benefits were still held by the fund. Following the divorce order that assigned her 50 per cent of the husband’s pension interest, the ex-wife approached the fund with the aim of requesting payment of what she believed was due to her (CNN para 5). The fund advised her that the ex-husband’s pension benefit had accrued to him and that he was no longer a member of the fund. Furthermore, the fund informed her that the divorce order did not comply with the legislative prescripts and could not be enforced. In turn, the fund’s Divorce and Maintenance officer advised that for her to be assisted, she needed to provide the fund with a divorce order directing it to pay a pension benefit as opposed to a pension interest. Accordingly, what the fund was holding on behalf of the husband was his accrued pension benefit and his pension interest was nil. As a result, the divorce order could not be enforced (CNN para 5). The contents of the letter from the fund caused the ex-wife to launch an application to amend the divorce order which incorporated the settlement agreement by amending the phrase ‘pension interest’ and replacing it with ‘accrued pension benefit’ (CNN para 6).
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    Is the foreign business establishment lagging behind new business models? Commissioner for the South African Revenue Service v Coronation Investment Management SA (Pty) Ltd [2023] Zasca 10
    (Juta Law Journals, 2023-12) Sengwane, Khodani
    Controlled foreign company (CFC) rules are anti-avoidance rules to ensure the taxation of profits diverted offshore by South African residents (Van der Zwan, ‘Cross-border transactions’ in Stiglingh (ed), Silke: South African Income Tax (LexisNexis 2023) 889). The rules are concerned with avoidance schemes and are not meant to deter real cross-border transactions (Van der Zwan, ‘Cross-border transactions’ in Stiglingh (ed), Silke: South African Income Tax (LexisNexis 2022) 871–872). In terms of the rules, profits of a non-resident company may also be liable for tax in South Africa at the hands of its resident shareholder/s if the company is considered to be a CFC of such resident shareholder/s (s 9D of the Income Tax Act 58 of 1962 (Act)). A company will be considered to be a CFC if it is a foreign company where more than 50 per cent of the total participation rights or voting rights in that company are directly or indirectly held or exercisable by one or more residents (except headquarter companies) or the financial results of that foreign company are reflected in the consolidated financial statements (prepared in terms of International Financial Reporting Standards 10) of a resident company (s 9D of the Act).