Scielo RSS <![CDATA[De Jure Law Journal]]> http://www.scielo.org.za/rss.php?pid=2225-716020200001&lang=en vol. 53 num. lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>The use of impact statements, minimum sentences and victims' privacy interests: a therapeutic exploration</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100001&lng=en&nrm=iso&tlng=en By submitting or presenting an impact statement, reflecting on the different kinds of harm caused by the commission of a crime against them, victims are also allowed the opportunity to participate in criminal justice procedures. In South Africa, its use has been endorsed through appellate judgments, legislation, and a Victims' Charter. Though the precise role, value, weight and inconsistent use of victim impact statements have often been debated, no possible human right violation had, until recently, been highlighted. However, in the axe-murder case of S v van Breda (SS17/16) [201 8] ZAWCHC 87 (7 June 201 8)) the prosecution indicated that, in protecting the right to privacy of the surviving victim, no impact statement would be presented during sentencing. This paper explores the argument raised by the state and, in the event of an impact statement infringing on an adult victim's privacy, what the likely psychological consequences are. It is contended that, while it is widely used, and often considered essential, as one factor to determine the absence or existence of substantial and compelling circumstances, it also reveals extremely intimate detail about victims and may be perceived to infringe on their privacy. Victims should at all times be informed of the route this information might take into not only the public domain, but also more pertinently the divulgence to the accused per se. They should be empowered to take an informed decision in this regard. Based on an individualistic approach, the particular victim's well-being should be respected and advanced. <![CDATA[<b><i>Carpe Pecuniam: </i>Criminal forfeiture of tainted legal fees</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100002&lng=en&nrm=iso&tlng=en A person charged with money laundering has a right to legal representation and a lawyer is entitled to defend such person. What if the lawyer is paid with dirty money? This paper explores the legal status of tainted fees, to determine whether such moneys should be forfeitable and, if so, what forfeiture means for the client's right to legal representation and the lawyer's right to practise his\her profession. This is an issue of international import and the paper considers criminal forfeiture of tainted legal fees in South Africa, the USA and Canada. All three jurisdictions provide for the criminalisation of tainted fees. However, South African lawyers are most in peril both of prosecution and conviction for accepting tainted fees and of having such fees confiscated. Whereas the USA and Canada uphold the right of lawyers to practise their profession, South Africa appears to negate it. The South African position requires reform. <![CDATA[<b>The implementation of customary law of succession and common law of succession respectively: With a specific focus on the eradication of the rule of male primogeniture</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100003&lng=en&nrm=iso&tlng=en This article pays close attention to some of the problems and practical challenges presented by the abolition of the rule of male primogeniture and thereafter, the extension of the Intestate Succession Act to customary law of succession. Additionally, it supports the possibility of harmonising common law of succession with customary law of succession without imposing common law mechanisms and ideas on customary law. The purpose of this article is to suggest ways on how best to reconcile customary law with the Constitution without imposing western law on customary law. This will be achieved by showing the reader the viability and possibility of customary law and common law co-existing, independently from one another, subject to the Constitution as the supreme law, without the application of common law standards as a measure for customary law, which was the case in the past. <![CDATA[<b>The termination of the bank-client relationship in South African banking law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100004&lng=en&nrm=iso&tlng=en In the year 2015/16, some of the major South African banks such as Standard Bank, terminated its bank-client contracts with its customers. The customers argued that Standard bank issued no notice of termination of these bank-client contracts. Alternatively, if the bank issued the notice of termination, the period thereof was insufficient for the client to arrange for an alternative baking option. As a result, the client argued that Standard Bank unlawfully terminated the bank-client relationship. Consequently, this paper examines this termination by considering, i) the nature of their relationship, ii) the duties of both the bank and the client, iii) and iv) the ways and circumstances which the bank-client contract may be terminated in South African banking law. <![CDATA[<b>The corruption race in Africa: Nigeria versus South Africa, who cleans the mess first?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100005&lng=en&nrm=iso&tlng=en The aim and objective of this article is to unpack in a comparative format the fiend of corruption in Africa, using Nigeria and South Africa as the giant in corruption alongside Somalia, South Sudan and Madagascar in the continent of Africa. It is true that corruption has been imported and/or incorporated into the African political space; although, the dimension and effects of corruption differ from country to country in Africa. In Africa, corruption is clearly visible culminating in several high-profile scandals standing out. In Nigeria for instance, former and late military head of State, Sani Abacha and South Africa's Jackie Selebi were some among many public office bearers indicted in corruption mess. Kofele-Kale noted that corruption is punishable in all African countries, prohibited in their Constitutions and in various regional and pan-African anti-corruption instruments. In fact, Africa's leaders are concerned about the problem of corruption that hardly a day goes by without some government entity criticising corruption and its cancerous effects on African society, yet, Africa has made little or no progress on this front. The article examines corruption in Nigeria and South Africa and tries to find out which of these two countries will be first in the complete eradication of corruption. <![CDATA[<b>Is the requirement of integration of the bride optional in customary marriages?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100006&lng=en&nrm=iso&tlng=en Section 3(1) of the Recognition of Customary Marriages 120 of 1998 provides for the requirements for a valid customary marriage entered into after the commencement of the Act. The requirements are, the parties must be 18 years of age or above; they must consent to being married under customary law and the marriage must be negotiated and entered into or celebrated in terms of customary law. The result of entering into or celebrating a customary marriage is the bride be integrated into her new family. The question is, may the parties agree to waive the integration of the bride? This depends on whether this is a dispensable or indispensable requirement. The article forwards two school of thoughts; the first favours the view that integration of the bride is dispensable, whereas the second forwards the view that integration of the bride is indispensable. These two schools are analysed using largely case law. The article begins from the premise that integration of the bride is an indispensable requirement. This being said, it forwards the view that integration comprises many events, some of which are dispensable; one of these event is the handing over of the bride, which cannot be waived. <![CDATA[<b>From mere Christmas decorations to concrete constitutional ethics: <i>EFF v Speaker of the National Assembly; DA v Speaker of the National Assembly </i>2016 3 SA 580 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100007&lng=en&nrm=iso&tlng=en Section 3(1) of the Recognition of Customary Marriages 120 of 1998 provides for the requirements for a valid customary marriage entered into after the commencement of the Act. The requirements are, the parties must be 18 years of age or above; they must consent to being married under customary law and the marriage must be negotiated and entered into or celebrated in terms of customary law. The result of entering into or celebrating a customary marriage is the bride be integrated into her new family. The question is, may the parties agree to waive the integration of the bride? This depends on whether this is a dispensable or indispensable requirement. The article forwards two school of thoughts; the first favours the view that integration of the bride is dispensable, whereas the second forwards the view that integration of the bride is indispensable. These two schools are analysed using largely case law. The article begins from the premise that integration of the bride is an indispensable requirement. This being said, it forwards the view that integration comprises many events, some of which are dispensable; one of these event is the handing over of the bride, which cannot be waived. <![CDATA[<b>An analysis of the rationale behind the distribution of shares in terms of the Islamic law of intestate succession</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100008&lng=en&nrm=iso&tlng=en There are 35 verses in Al Quraan that refer to succession. A daughter always inherits half the share of a son in terms of the Islamic law of intestate succession. (See Khan The Noble Qur'an - English Translation of the Meanings and Commentary 1404H (4) 11 where it states that "Allah commands you as regards your children's (inheritance); to the male, a portion equal to that of two females..."). The reason why females (at times) inherit less favourably than males in terms of the Islamic law of intestate succession is not clearly stated in the primary sources of Islamic law. This note analyses the question as to whether the discrimination against females is consistent throughout the Islamic law of intestate succession. It also analyses the possible rationale behind the unequal distribution. The note concludes with an overall analysis and concluding remarks. <![CDATA[<b>The dissolution of universal partnerships in South African law: Lessons to be learnt from Botswana, Zimbabwe and Namibia</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100009&lng=en&nrm=iso&tlng=en The universal partnership is a unique common-law creature that offers valuable benefits during its subsistence and especially upon its dissolution. This article is concerned with the application of the dissolution of universal partnership as an interchangeable legal remedy, by providing litigants with contractual remedies. Foreign jurisdictions such as Botswana, Namibia and Zimbabwe have used the consequences of the dissolution of the universal partnership in various cases from putative marriages to customary law cases in order to do justice between the parties. These foreign courts have applied the consequences of dissolution in a reformative and liberal manner, without being side-tracked by legislative departures and debates. Although much debate surrounds the interchangeable approaches followed by the courts when using this contract in cases of putative marriages, unrecognised religious marriages, cohabitation and customary law, it is nonetheless applied as a remedial measure. The intended "single marriage statute" and relevance thereof on the universal partnership is also explored in this article. The difference between intimate and commercial universal partnerships as well as the drawbacks of using the universal partnership in the context of cohabitation is shortly discussed. It is suggested that our courts more willingly provide contract-based relief to litigating parties by following a liberal application the universal partnership. Unmarried cohabiting persons are often left without legislative recourse and remedies as the intended "single marriage statute" and the Domestic Partnership Bill of 2008 has not yet been enacted into law. For this reason a reformative, progressive and liberal application of the universal partnership, as observed in foreign law, may certainly allow our courts to protect these vulnerable parties. <![CDATA[<b>The processing of personal information using remotely piloted aircraft systems in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100010&lng=en&nrm=iso&tlng=en Remotely piloted aircraft systems are becoming a commodity all over the world. Typically known as "drones", remotely piloted aircraft systems allow pilots to record videos and take photographs without being physically present. Such systems are used in both private and commercial ways that vary from service delivery to surveillance. As such, the protection of the right to privacy faces new challenges under South African law. This paper is concerned with the irresponsible use of remotely piloted aircraft systems, that results in privacy infringement. The article also includes a discussion of the obstacles that come with identifying users of remotely piloted aircraft systems, and the burden that such constraints place on people who seek to enforce their right to privacy. Therefore, the paper is a critical analysis of whether the existing data protection and civil aviation laws can withstand the invasion of remotely piloted aircraft systems in South Africa. <![CDATA[<b>Re-visiting the powers of the King under the Constitution of Lesotho: Does he still have any discretion?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100011&lng=en&nrm=iso&tlng=en The powers of the monarch have been a subject of protracted political and legal controversy since colonialism in Lesotho. When the country got independence from Britain in 1966, the long drawn-out gravitation towards British model of constitutional monarch was confirmed in the Independence Constitution. Nevertheless, the Independence Constitution had categories of powers for the monarch. There were powers reposed in the King exercisable "on the advice" and those that were exercisable in his own "deliberate discretion". When the current Constitution was adopted in 1993, the discretionary powers of the King were effectively abolished; all his powers became exercisable "on the advice". That the powers of the King under the current Constitution are only exercisable on advice has been a long-held view in judicial policy and in legal scholarship. It was not until 201 7 when the Court of Appeal in the case of Phoofolo v The Right Honourable Prime Minister suggested that the King may have discretion on whether to accede to Prime Ministers "recommendation" to dissolve parliament or not. The decision of the Court of Appeal in Phoofolo has reinvigorated a fresh debate in constitutional scholarship about the real powers of the monarch under the Constitution. The purpose of this paper is to investigate the extent of the legal powers of the monarch under the Constitution - whether indeed the King still has any discretionary power. <![CDATA[<b>Understatement penalty in terms of the Tax Administration Act - a critical analysis of the interpretation of a <i>bona fide </i>inadvertent error</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100012&lng=en&nrm=iso&tlng=en The Tax Administration Act stipulates that in the instance of an understatement by the taxpayer, an understatement penalty must be levied by the South African Revenue Service (SARS) for each shortfall in relation to each understatement, unless the understatement is due to a bona fide inadvertent error. The term "bona fide inadvertent error" is only used in the context of an understatement penalty. This term is, however, not defined in the Tax Administration Act, any other tax act, or the Interpretation Act. Initially, when the term was first introduced into the Tax Administration Act in 2013, certain factors that need to be considered in the context of factual errors and in the case of a legal interpretive error were listed in the Draft Memorandum on the Objects of the Tax Administration Laws Amendment Bill of 2013. However, the final version of the Memorandum on the Objects of the Tax Administration Laws Amendment Bill of 2013 did not include examples of what would constitute a bona fide inadvertent error when SARS must consider whether or not to impose an understatement penalty, but it stated that guidance will be developed in this regard. Subsequently, during 2016, judgement was delivered in Income Tax Case (ITC) 1890 and the court held that a bona fide inadvertent error is "an innocent misstatement by a taxpayer on his or her return, resulting in an understatement, while acting in good faith and without the intention to deceive". Thereafter, during 2018, SARS issued guidance in respect of the use of the term "bona fide inadvertent error" in the context of understatement penalties. SARS concluded that "the only errors that may fall within the bona fide inadvertent class are typographical mistakes - but only properly involuntary ones", and further clarified that a lack of reasonable care will also not be excused. There is a conflicting view between the court in ITC 1890 and the guidance provided by SARS. It is, however, important that clear-cut guidance be provided regarding what would constitute a "bona fide inadvertent error", as this would absolve the taxpayer from an understatement penalty. <![CDATA[<b>RS v Road Accident Fund (49899/17) [2020] ZAGPPHC (21 January 2020)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100013&lng=en&nrm=iso&tlng=en The Tax Administration Act stipulates that in the instance of an understatement by the taxpayer, an understatement penalty must be levied by the South African Revenue Service (SARS) for each shortfall in relation to each understatement, unless the understatement is due to a bona fide inadvertent error. The term "bona fide inadvertent error" is only used in the context of an understatement penalty. This term is, however, not defined in the Tax Administration Act, any other tax act, or the Interpretation Act. Initially, when the term was first introduced into the Tax Administration Act in 2013, certain factors that need to be considered in the context of factual errors and in the case of a legal interpretive error were listed in the Draft Memorandum on the Objects of the Tax Administration Laws Amendment Bill of 2013. However, the final version of the Memorandum on the Objects of the Tax Administration Laws Amendment Bill of 2013 did not include examples of what would constitute a bona fide inadvertent error when SARS must consider whether or not to impose an understatement penalty, but it stated that guidance will be developed in this regard. Subsequently, during 2016, judgement was delivered in Income Tax Case (ITC) 1890 and the court held that a bona fide inadvertent error is "an innocent misstatement by a taxpayer on his or her return, resulting in an understatement, while acting in good faith and without the intention to deceive". Thereafter, during 2018, SARS issued guidance in respect of the use of the term "bona fide inadvertent error" in the context of understatement penalties. SARS concluded that "the only errors that may fall within the bona fide inadvertent class are typographical mistakes - but only properly involuntary ones", and further clarified that a lack of reasonable care will also not be excused. There is a conflicting view between the court in ITC 1890 and the guidance provided by SARS. It is, however, important that clear-cut guidance be provided regarding what would constitute a "bona fide inadvertent error", as this would absolve the taxpayer from an understatement penalty. <![CDATA[<b>"We'll fight this little struggle": alleviating hunger in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100014&lng=en&nrm=iso&tlng=en In post-apartheid South Africa, citizens have on several instances resorted to the use of social protest or public dissent as a means of improving their access to essential socioeconomic amenities. The protection of citizens from chronic hunger has been a dominant theme among policy actors in South Africa, most of whom have expansive mandates to ensure citizens have adequate access to food. However, the number of people facing hunger remains high, giving rise to questions about the best approach to address chronic hunger, specifically, through social protest. Social protest, as used here, consists of struggles or resistance against government actions or inactions. Ironically, whiles social protest has been used on different fronts (housing, health, education and wrongful eviction), chronic hunger or lack of people's access to adequate food hardly becomes a pivot around which protesters seek to bring about reform. Based on examples from selected countries, the discussion notes that protest is an effective tool for protecting citizens from food poverty. However, before protest could influence food policy, there is the need for mobilisation of all relevant actors to challenge existing (inadequate) food policies. The paper identified various factors that have contributed to and acted as a hindrance against food protest in various jurisdictions and examined how these factors have prevented widespread food protest in South Africa. <![CDATA[<b>Regulation 22 of the Amended Tariff Investigations Regulations and the right to "procedural fairness"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100015&lng=en&nrm=iso&tlng=en Regulation 22 of the Amended Tariff Investigations Regulations (ATR) permits the International Trade Administration Commission (ITAC) to submit to the Minister of Trade and Industry, a "final finding" that consists of a recommendation to either approve or reject an application for a tariff amendment and a Ministerial Minute or a report explaining the reasons for ITAC's evaluation. The Minister of Trade and Industry can then decide to either approve or reject ITAC's recommendation. However, Regulation 22 of the ATR does not avail the affected parties any notice of the nature and purpose of this "proposed administrative action" nor a "reasonable opportunity to make representations" on it. Consequently, the object of this paper is to assess whether Regulation 22 complies with the right to "procedural fairness" in the manner contemplated by section 3 of the Promotion of Administrative Justice Act 3 of 2000. <![CDATA[<b>Discussing the fundamental principles inherent to effective systems of caregiving leave</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100016&lng=en&nrm=iso&tlng=en Achieving a healthy work-family life balance is becoming increasingly difficult and is generally dependent on a combination of factors. Such factors include the nature and intensity of work engaged in, available legislative or employer provided leave and time-off for caregiving (family) responsibilities, and organisational and home support towards carrying out caregiving duties. A largely female focussed approach towards available caregiving leave must also be addressed. A truly effective system of caregiving leave should be sensitive towards a number of issues, most notably: job security and availability, and sufficiency and practicality of available caregiving leave. With the aforesaid as background, the aim of this contribution is to highlight those fundamental or core principles arguably inherent to any effective system of caregiving leave. <![CDATA[<b>Access to justice for all: a reality or unfulfilled expectations?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100017&lng=en&nrm=iso&tlng=en While the constitutional imperatives related to access to justice, the legislative framework of Legal Aid SA (LASA), the regulations for the attorneys' profession and the Legal Practice Act 28 of 2014 suggest that citizens are adequately catered for in accessing justice, the lived reality for poor persons is that this is not substantively attained. The formal framework creates unfulfilled expectations. First year law students at a Law faculty were required to report on their observations in the lower courts and on an interview with a litigant or official at the court visited. The focus of the assignment was on access to justice: identifying barriers and making recommendations for enhancing access to justice. The observations of the novice law students in the courts speak to the experiences of indigent and middle-class persons seeking to access the courts in largely urban areas. Ethical clearance and informed consent of the participants was obtained in accordance with the requirements of the Ethics Research Committee of the Law faculty. What is evident is that the achievement of access to justice is impeded by a number of factors, including socio-economic inequalities, systemic inefficiencies caused by poor administration at the courts and an unmet demand for legal services. It will require the allocation of significant financial and human resources to overcome the obstacles preventing those who cannot afford the cost of private legal representation from effectively accessing the legal system. The aim of the paper is to review the position pertaining to access to justice in the various regulatory sources and then to consider the obstacles identified by the students related to 'law in practice' in the lower courts of South Africa. Finally, the paper proposes some recommendations to address the observed impediments to accessing justice by the poor. <![CDATA[<b>Competition law and corporate social responsibility: a review of the special responsibility of dominant firms in competition law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100018&lng=en&nrm=iso&tlng=en "with great power, comes great responsibility"¹ Few concepts aptly captures competition law's expectations on firms with substantial market share or market power than 'with great power, comes great responsibility', made popular in American movie Spider Man2 Although Spider Man helped made the concept popular, its true origin may be religious teachings and ancient cultural wisdoms. The Bible, King James Version,, warns that "For unto whomsoever much is given, of him shall be much required"³In African culture, the value or principle of Ubuntu, with its emphasis on common humanity and good, counsels that one person should not thrive at the expense, or to the exclusion, of others. The relevance and application of these principles or values to commercial relationships and rules of trade regulation, in particular competition law, is the object of this paper. In some competition law jurisdictions, abuse of dominance rules recognise, explicitly or impliedly, that firms with substantial market share or market power have a special 'duty' or 'responsibility' to the market.4 The purpose of this paper is to investigate the link between certain elements of this special duty or responsibility and Corporate Social Responsibility ("CSR").5 It is the argument of this paper that the principle of special responsibility, as applied in competition and abuse of dominance law, has elements of CSR. <![CDATA[<b>Gender-based violence ignites the re-emergence of public opinion on the exercise of judicial authority</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100019&lng=en&nrm=iso&tlng=en South Africa is highly celebrated for its commitment to the promotion of human rights. This has also fostered "rights consciousness" among the citizenry which has become of essence for the advancement of the rights of women who had long been in the "legal cold". However, the significance of the "rights concepts" is marred by the extreme levels of gender-based violence against women. The effect of crimes suffered by women raises questions about South Africa's post-apartheid system of governance and the promotion of the rule of law, which is founded on human rights. With South Africa's history, it is assumed that law has the potential to transform societies in ensuring the fulfilment of rights as envisaged in many national, regional and international instruments. Against this background, this paper focuses on the recent shocking wave of the extreme levels of gender-based violence against women experienced in South Africa with the resultant consequence of the agitation of the public on the independence of the judiciary. Whilst it acknowledges the limitations of the law and the challenges faced by women, it argues against public opinion that seem to wither the democratic character of the state relating to the functioning of the judiciary. It also argues that public opinion waters down the assumption about the capacity of the law in generating social change. In addition, the confidence in the judiciary cannot be replaced by invidious philosophies that appear to compromise the independence of the judiciary as envisaged in the doctrine of separation of powers. The argument advanced herein is limited to the rationality of the calls by further raising a question whether safeguarding independence and impartiality of the judiciary should be outweighed by public outrage on gender-based violence. It also does not profess to provide an expert analysis of the interrelationship between law and social change because of the complexities that exists between these areas. Overall, the paper acknowledges and shares the concerns by the public on the elimination of gender-based violence; however, it refuses the indirect consequence of public opinion on the trampling of judicial authority. <![CDATA[<b>Evaluating the jurisprudence of the African Commission on evidence obtained through human rights violations</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100020&lng=en&nrm=iso&tlng=en The normative framework of the African Commission, which regulates the admission of evidence obtained through human rights violations, is largely based on a number of instruments. These include the Tunisian Resolution, the Dakar Declaration, the Robben Island Guidelines and the Principles and Guidelines on the Right to a Fair Trial and Legal Representation in Africa. It is argued that the emerging jurisprudence on evidence obtained through human rights violations has a limited developmental framework, owing to the normative framework. This contribution discusses the normative framework, and qualifies the limited jurisprudence. The final step engages the jurisprudence of the Commission followed by a conclusion and recommendations. <![CDATA[<b>Conceptualising the home in law and gender</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100021&lng=en&nrm=iso&tlng=en The "home" forms a central part of life and it finds relevance in various other legal spheres. However, for such a central point of reference in law and everyday life, it still remains a somewhat vague notion without any discernible meaning in law. Due to the centrality of the home in law and everyday life, it seems necessary to have a coherent understanding of it. Various legal writers and judgments have acknowledged the underdeveloped nature of home in law and have broadly attempted to give home a space in law. Unfortunately, these interpretations of the home fall short and do not encompass all the positive values of home. This article, therefore, considers how gender factors affect the understanding of home and how the law holds some power to structure and restructure gendered relations which stand in the way of achieving a positive interpretation of the home.