Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

The UCP as a choice of non-state law in international commercial contracts

2022-11-24T14:50:12+00:00

The article analyses the UCP as a form of non-State law. It demonstrates that in some courts the UCP may inadvertently be applied as the governing law of the agreement instead of as contractual terms. The article proceeds to analyse the UCP against Article 3 of the Hague Principles on Choice of Law in International Commercial Contracts as well as along a set of criteria, developed by the author, that endeavours to provide certainty in the choice of non-State law. Based on the application of the above criteria the article concludes that the UCP would be suitable as a choice of governing law of the agreement.

A comparative analysis of the approach to the conformity of a supporting statement calling for payment under demand guarantees

2022-11-24T14:53:20+00:00

The core requirement of a demand guarantee is to receive payment through the delivery of documents or a call for payment that meets the requirements of the demand guarantee. The call for payment may be accompanied by a declaration alleging a breach of the underlying agreement or a statement with full particulars of the breach. However, the extent to which the data in the supporting statement or statement of breach must comply with the guarantee requirements is not always entirely clear. Over the years, a strict standard of compliance of the statement with the terms of the guarantee has been employed. This has threatened the commercial use of demand guarantees due to demands for payment being rejected. This article draws upon the approach in resolving the problems related to the conformity of a statement accompanying the call for payment through an analysis of international instruments applicable to demand guarantees (the Uniform Rules for Demand Guarantees (URDG758); the International Standby Practices (ISP98); the United Nations Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention); the Supreme Court of the People's Republic of China Letter of Credit Rules (Chinese LC Rules); the Provisions of the Supreme People's Court of the People's Republic of China on Several Issues Concerning the Trial of Disputes Over Independent Guarantees (Chinese IGP), the recently issued International Standard Demand Guarantees Practice (ISDGP) and international case law in an attempt to find the most feasible approach for South African law. A supporting statement accompanying a call for payment is conforming if it indicates the event triggering the guarantor's obligation to pay as specified in the demand guarantee. Furthermore, in ascertaining whether a supporting statement is compliant, a technical interpretation of the terms of the guarantee should be avoided in favour of one that advances the common intention and purpose of the guarantee.

Should market value be retained as the only tax base for municipal property rates in South Africa?

2022-11-24T14:54:47+00:00

In terms of the Local Government: Municipal Property Rates Act 6 of 2004 (MPRA), metropolitan and local municipalities in South Africa may levy property rates on property. The MPRA provides for only one tax base, namely "market value". Given the paucity of skills and capacity to prepare credible valuation rolls and given the costs of doing so, especially B3 and B4 local municipalities situated in rural areas are struggling to comply with the valuation-related provisions of the MPRA. A brief review of property tax base options utilised globally indicates that some countries allow for different tax bases (or even different taxes) based on the location and/or use of property and some jurisdictions apply simplified methodologies (such as value banding, points-based assessment or even self-assessment) to assess properties for property tax purposes. In the light of there being viable alternatives to market value and of the challenges faced by many rural local municipalities, the South African government should revisit the policy decision to have only market value as the tax base across vastly different types of municipalities.

Beneficiary fraud and demand guarantees

2022-11-24T14:55:33+00:00

It is settled in South African and English law that for the fraud exception to apply to demand guarantees or letters of credit the fraud must have been committed by the beneficiary (or his agent with the beneficiary's knowledge) and not by a third party. Even where the fraud relates to a forgery or materially fraudulent document, the fraud must have been committed by the beneficiary for the exception to apply. This is in contrast with American law, where the fraud relating to forgeries and materially fraudulent documents does not necessarily have to be committed by the beneficiary. This contribution considers the law in this regard in these three jurisdictions.

Tax planning using interest –an organised chaos for those interested

2022-11-24T14:56:20+00:00

Taxation of interest is one of the most complex areas of tax in South Africa. Various provisions apply to interest, with some regulating the inclusion of interest in gross income, others allowing for the deductibility of interest incurred, others limiting the amount of interest that is deductible and yet others providing for anti-avoidance tax measures using interest. This makes tax planning using interest to be a technically intense exercise, time consuming and often costly. This article critically analyses the provisions applicable to interest and highlights the circumstances in which they apply as well as the results of their application. It also illustrates instances of the overlaps in the application of these provisions.

A critical evaluation of the use of sanctions clauses in letters of credit

2022-11-24T14:57:11+00:00

With the sharp increase in sanctions-related compliance requirements and expectations over the last decade, banks have sought various methods to mitigate the legal risk of engaging sanctioned persons or entities. The inclusion of so-called sanctions clauses in commercial contracts is one such method. In this article the author explores the use of sanctions clauses specifically in letters of credit, a practice which appears to be gaining ground. More particularly, the article explores the issues associated with the non-documentary nature of sanctions clauses, as well as the question whether the mandate given by the issuing bank to the nominated bank in respect of a letter of credit containing a sanctions clause meets the requirements of a valid contract. The author contends that sanctions clauses militate against conventional letter-of-credit practice and seriously undermine the irrevocable nature of the issuing bank's payment obligations. This is especially the case when a reference is made in a sanctions clause to internal sanctions policies or a discretion of the issuing bank in relation to honouring the credit. Consequently, banks would be well-advised not to use sanctions clauses, but if contemplated, then a reference to internal policies or a discretion of the issuing bank must be avoided at all costs. This much is in alignment with the views of leading international organisations.

Issues and essence of distribution Law in Germany: a contribution in honour of Professor Charl Hugo

2022-11-24T14:59:12+00:00

The focus of this article is on the law of contractual distribution systems which has evolved from the law of sales agents, mainly by way of judicial interpretation and intervention. The article explores the realm of distribution law – mainly – from a German perspective. The law of distribution relates to the contractual, commercial, and competition law aspects concerning the distribution of goods and services. The area comprises forms of indirect distribution through contractual distribution systems by means inter alia of commercial sales agents, licensed distributors and franchisees. However, direct distribution (such as e-commerce through internet sales) plays an important role too and thus requires the consideration of consumer protection law issues. Subject matters of distribution law of wider interest, for example vertical integration systems and the regulatory task of distribution competition and distribution contract law, will be explored. Subsequently, the article highlights current challenges in the field of distribution law, among them the digitalisation and internationalisation of distribution activities.

When context matters -application and potential of financial crime risk indicators in selected African jurisdictions

2022-11-24T15:00:23+00:00

This article explores the application and potential of financial crime risk indicators in international banking and mercantile transactions. Special emphasis is placed on lists of financial crime risk indicators which are circulated or have been drafted by governments and public institutions in sub-Saharan Africa. This article investigates inter alia whether such financial crime risk indicator lists created by African institutions differ noticeably – regarding content, drafting style, and availability – from other well-established indicator lists, and whether African financial crime risk indicator lists appropriately represent African commercial realities and thus meaningfully contribute to fighting financial crime on the continent and beyond.

Financial services and arrangements to facilitate the (ex)portability of social security benefits in the Southern African Development Community

2022-11-24T15:01:38+00:00

This contribution reviews the financial services and arrangements to facilitate the (ex)portability of social security benefits in the Southern African Development Community (the SADC). It commences by providing a general background to the theme it covers by focussing on the (ex)portability of social security as part of the coordination principles contained in the pertinent International Labour Organisation social security conventions, the (ex)portability of social security benefits provided for in SADC social security instruments, the key purpose of the payment of social security abroad, and the negative impact of the absence of the suitable cross-border payment of benefits in the SADC. It proceeds by discussing the common methods used for the cross-border payment of social security benefits in the SADC. These models are business-to-business, business-to-client, government institution-to-government institution, and client-to-business. The contribution continues by reviewing selected challenges in the region facing financial services and arrangements to facilitate the payment of social security abroad. These challenges are the lack of a single currency, remittance costs, and unbanked persons. The paper concludes by making recommendations for developing a coherent regional and enabling framework for the payment of social security benefits abroad

International commercial law emerging in Africa

2022-11-24T15:02:26+00:00

This article provides an overview of the history of international commercial law in Africa with reference to instruments of the three sister organisations of private international law (in a wide sense): UNCITRAL (the United Nations Commission on International Trade Law), UNIDROIT (the International Institute for the Unification of Private Law) and the HCCH (the Hague Conference on Private International Law). The adoption of UNIDROIT's Cape Town Convention on International Interests in Mobile Equipment of 2001 is identified as a possible watershed moment in respect of the future development of international commercial law in Africa. Following the creation of an African Continental Free Trade Area by member countries of the African Union, it is suggested that participating states reconsider joining the United Nations Convention on the International Sale of Goods (1980) (CISG) and incorporating the UNCITRAL Model Law on International Commercial Arbitration (1985/2006), which are in a certain sense the two founding documents of the modern lex mercatoria. Another priority, the author suggests, is that Africa needs a supporting instrument on the private international law of contract. The first draft of the African Principles on the Law Applicable to International Commercial Contracts is then discussed with an emphasis on the role of substantive law instruments, in particular the CISG.

The sanctions debate in the work of the United Nations since the 2000 working paper

2022-11-24T15:03:22+00:00

In recent years the lawfulness of certain types of sanctions and the question about the usefulness of sanctions in general have become topical and widely discussed issues. Of special significance is the expanding use by powerful states of unilateral coercive measures without Security Council authorisation, or beyond Security Council authorisation, to illustrate their displeasure with the domestic or foreign policies of certain members of the international community. Over time the nature of these measures has taken on diverse forms and their encroachment on human rights and freedoms has become a matter of international concern. This contribution examines the developments that have taken place in this context since the 2000 report of the Working Group on the negative impact of sanctions by focussing on the interventions by key United Nations bodies.

The Steinhoff corporate scandal and the protection of investors who purchased shares on the secondary market

2022-11-24T15:04:05+00:00

The December 2017 revelations of accounting irregularities in the Steinhoff group resulted in the share price dropping more than 95%. Investors, including pension funds, lost millions.

This contribution deals with some of the legal issues arising from the misstatement of the financial position of Steinhoff International Holdings NV and its South African predecessor Steinhoff International Holdings Ltd, which resulted in the inflation of its quoted share price. It considers how retail and institutional investors who had acquired their shares through trades on the regulated secondary market might recover the losses they suffered. The administrative penalty provisions in relation to market abuse are briefly considered but shown to be of very limited application as regards compensation to investors.

Common-law delictual liability and statutory civil liability in terms of section 218(2) and section 20(6) of the Companies Act are considered in the context of the first reported attempt at the certification of a shareholder class action. Unfortunately, both the potential statutory remedies were interpreted so restrictively by the court in the class action certification application that they would hardly serve any purpose. The interpretations are shown to cause anomalies in the context of the Companies Act and to be out of step with established principles of company law. Also, the certification court's application of the reflective loss and proper plaintiff principles is questioned.

Some of these issues might have been solved through further litigation, but for statutory compromise and composition mechanisms that brought a mutually acceptable early end to the uncertainty of protracted litigation

Comparative perspectives on the keeping of animals in Sectional (Strata) Title Schemes

2022-11-24T15:06:42+00:00

The aim of this article is to provide comparative perspectives on the keeping of animals in sectional title schemes by analysing the conduct rule for the keeping of animals, reptiles, and birds in the provisions of the Sectional Titles Schemes Management Act. This investigation is prompted by the approval of new pet rules by the chief ombud and the provisions of the Community Schemes Ombud Service Act on adjudication orders available for nuisance caused by animals. The Act further allows the body corporate to record a new scheme governance rule or to declare a scheme rule invalid. The topics to be discussed are: the types of animal kept in sectional title schemes; the written approval of the trustees for the keeping of animals which may not be withheld unreasonably; whether the body corporate may adopt a scheme rule containing a blanket prohibition on the keeping of animals in a sectional title scheme; the reasonable conditions which may be attached to trustee approval; the withdrawal of approval if the conditions are breached; the requirements for a rule restricting the keeping of a kind of animals or animals with specific characteristics in a scheme; and the deemed approval for the keeping of guide, hearing, and assistance animals in a sectional title scheme.

Integration of the bride and the courts: is integration as a living customary law requirement still required?

2022-11-24T15:07:39+00:00

After 15 November 2000, a customary marriage must satisfy the provisions of section 3(1) of the Recognition of Customary Marriages Act 120 of 1998. Section 3(1)(b) incorporates the living customary law requirements into the Act. This article explores whether the handing over of the bride to the bridegroom's family is still required, based on two recent judgements from the South African Supreme Court of Appeal: Mbungela v Mkabi 2020 1 SA 41 (SCA) and Tsambo v Sengadi In re: Tsambo (244/19) [2020] ZASCA 46 (30 April 2020). The author argues that a clear distinction must be made between rituals or customs and legal requirements when determining whether a customary marriage is valid under the living customary law. The author argues that Mbungela v Makabi is wrong in law and therefore not authority that "handing over in the wide sense" (or integration) is not required for the conclusion of a valid customary marriage. Tsambo v Sengadi In re: Tsambo is correct. Concluding that although the rituals of handing over (handing over in the narrow sense) can be amended, abbreviated, or waived the parties still must comply with the integration of the bride into the bridegroom's family for a valid customary marriage to take place. The author supports the revival by the Supreme Court of Appeal in Tsambo v Sengadi In re: Tsambo of the presumption of a valid customary marriage if the couple cohabited after the lobolo negotiations were completed and the woman's family did not object.

"In which the partners undertook reciprocal duties of support" –a discussion of the phrase as used in Bwanya v Master of the High Court, Cape Town

2022-11-25T05:44:41+00:00

In December 2021 the Constitutional Court delivered judgment in Bwanya v Master of the High Court, Cape Town. The court ruled that survivors of life-partnerships "in which the partners undertook reciprocal duties of support" would be entitled to claim benefits under the Maintenance of Surviving Spouses Act (the MSSA) and the Intestate Succession Act (the ISA). This case note focusses on the phrase "in which the partners undertook reciprocal duties of support." It examines the jurisprudential development of the phrase through the case law. It considers whether reliance on the phrase is likely to present an obstacle to potential claimants or whether the phrase can be interpreted in a way that broadens the protection provided by the MSSA and ISA so as to ensure that all vulnerable partners can be protected.

The note suggests that the optimal way in which to interpret the requirement that the life-partners had undertaken reciprocal duties of support would be to focus on the claimant's needs and financial dependence and to assess how the law can provide protection and redress to those who have incurred relationship-induced dependence because of the particular form and nature of the reciprocal support provided in the intimate relationship. Previous court judgments have noted the typically gendered nature of the contributions made by family members. The law must ensure that it furthers the constitutional goal of achieving substantive equality between men and women, while also acknowledging and responding to the intersectional forms that discrimination and disadvantage assumes.

Digitalisation in the health sector: A South African public law perspective

2022-11-24T15:09:38+00:00

The landscape of the health sector in South Africa as seen from a regulatory perspective is rapidly changing under the disruptive impact of digitalisation. Drawing on a paradigm of "strong rights" protection, particularly a robust privacy law fit for the digital age and sourced in the nation's Constitution, the operationalisation and application of health privacy regulation in post-apartheid society is briefly described. The note then enumerates and assesses several specific digital health technologies currently in use in interventions in South Africa. To do so, we adopt the international World Health Organisation (WHO) classification of digital health interventions. We also cover the recent South African response to the COVID-19 pandemic, noting the establishment in South Africa of the COVID-19 Tracing Database and subsequent technological interventions aimed at enhancing contact tracing and other responses to the pandemic. The establishment of the initial database was a development at the interface of the law enforcement and health sectors, which raised concerns regarding its risks to privacy, but it also raised hopes regarding its potential rewards in protecting public health.

Bullying in the workplace: the plight of South African employees

2022-11-24T15:10:21+00:00

This article discusses the prevalence of bullying in South African workplaces as well as the causes and symptoms thereof and the shortcomings in the current protection available to victims. Jurisprudence indicates that in the past victims typically had to rely on the prohibition against harassment in the Employment Equity Act 55 of 1998 (EEA). However, they were often unsuccessful as they could not prove that the bullying took place on a prohibited ground. An analysis of the common law and various other statutes confirms that South African law provides inadequate protection to victims of bullying. A brief overview of measures against bullying in some foreign jurisdictions indicates that bullying is mostly seen as a health and safety concern and that victims do not have to prove that bullying took place on a prohibited ground.

This article also discusses the newly adopted Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022 Code) which endeavours to give effect to the International Labour Organisation's (ILO) Violence and Harassment Convention No 190. The discussion aims to establish whether the 2022 Code will resolve the lacuna in the protection against workplace bullying. The article concludes that this is not the case and recommends that the EEA be amended to define harassment sufficiently wide to include bullying; that the Labour Relations Act 66 of 1995 be amended to provide that an omission by an employer to address harassment (including bullying) could constitute an unfair labour practice; that a national code issued in terms of the Occupational Health and Safety Act 85 of 1993 be adopted to address bullying; and that health and safety legislation be amended to explicitly address bullying in the workplace and provide remedies to victims.

A reply to Camilla Pickles' “Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests”

2022-11-25T04:40:06+00:00

Camilla Pickles' Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests (Pregnancy Law) aims at providing a less adversarial angle related to the pregnant woman and the unborn within her by moving away from viewing the pregnant woman as a single entity (including the unborn within her) as well as from viewing the pregnant woman and the unborn within her as two separate entities of distinctive value and with separate needs. This applies to four categories addressed by Pregnancy Law, namely foetal personhood, violence against pregnant women that terminates pregnancies, substance abuse during pregnancy, and the termination of pregnancy especially in the South African context. Pregnancy Law positions its argument on a relational model that emphasises the context of pregnancy as signifying a connection between the pregnant woman (with rights) and the unborn (with interests) inside her, the unborn being entirely dependent on the pregnant woman's body. This, in turn, is blended with what is referred to as a not-one/not-two approach. Bearing this in mind, Pregnancy Law claims to provide a compromise, a middle ground and a third approach regarding what is perceived to be the extremes of the single-entity and separate-entities approaches. Bearing this in mind, this article critically appraises Pregnancy Law's claims as alluded to above with a specific focus on the status of the unborn against the background of abortion (which in turn has implications for matters related to foetal personhood, violence against pregnant women that terminates pregnancies, and substance abuse during pregnancy).

Towards a more uniform approach to parenting coordination in South Africa

2022-11-25T05:02:48+00:00

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, South Africa has the Guidelines on the Practice of Parenting Coordination (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children's participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, there are also various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and the court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator's relationship with the court and the parties' legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

Strengthening the fight against corruption through the principle of accountability

2022-11-23T13:58:39+00:00

As much as rising inequalities, extreme poverty, unemployment, terrorism, and the disastrous effects of climate change, corruption is a global phenomenon with widespread consequences. The impact that corruption has on the resources and development of countries has been well documented. Recently the effects of corruption on human rights have also been noted. Specifically, it has been demonstrated that corrupt acts or omissions can violate states' duties to respect, protect, and fulfil human rights. Direct and indirect violations of human rights can be identified. The traditional approaches that have been employed in the fight against corruption, particularly the criminal law approach, have been critiqued for their limitation in practice. Specifically, human rights advocates have emphasised the lack of focus on the victims of corruption and the harm caused by violations of their recognised rights. This article examines a people-centred human rights-based approach as a possible response to this caveat. It is argued that human rights provide a "normative framework and legally-binding imperative" for anti-corruption strategies. In particular, the article analyses the principle of accountability as contained in the international human rights framework under which states, as duty bearers, are obliged to protect the rights of rights-holders in their jurisdiction from possible violations, either through their conduct or omission or those of third parties. In the event of an alleged violation of rights, the state must investigate, impose suitable punishment, and ensure equal access to remedies for holders of the violated rights. It is argued that this principle contributes several strengths to anti-corruption strategies. They include the empowerment of individual and collective rights-holders to hold states accountable for corrupt acts or omissions that have violated recognised and legally binding human rights. However, human rights procedures and enforcement mechanisms are not without their weaknesses, despite their accepted moral value. Their practical limitations are also examined to determine the actual efficacy of adopting this approach. The article concludes with some recommendations on how the human rights-based principle of accountability can be employed to overcome these challenges and contribute to the global fight against corruption.

First do no harm: legal principles regulating the future of artificial intelligence in health care in South Africa

2022-11-25T05:09:04+00:00

What sets AI systems and AI-powered medical robots apart from all other forms of advanced medical technology is their ability to operate at least to some degree autonomously from the human health care practitioner and to use machine-learning to generate new, often unforeseen, analysis and predictions. This poses challenges under the current framework of laws, regulations, and ethical guidelines applicable to health care in South Africa. The article outlines these challenges and sets out guiding principles for a normative framework to regulate the use of AI in health care. The article examines three key areas for legal reform in relation to AI in health care. First, it proposes that the regulatory framework for the oversight of software as a medical device needs to be updated to develop frameworks for adequately regulating the use of such new technologies. Secondly, it argues that the present HPCSA guidelines for health care practitioners in South Africa adopt an unduly restrictive approach centred in the outmoded semantics of telemedicine. This may discourage technological innovation that could improve access to health care for all, and as such the guidelines are inconsistent with the national digital health strategy. Thirdly, it examines the common law principles of fault-based liability for medical negligence, which could prove inadequate to provide patients and users of new technologies with redress for harm where fault cannot clearly be attributed to the healthcare practitioner. It argues that consideration should be given to developing a statutory scheme for strict liability, together with mandatory insurance, and appropriate reform of product liability pertaining to technology developers and manufacturers. These legal reforms should not be undertaken without also developing a coherent, human-rights centred policy framework for the ethical use of AI, robotics, and related technologies in health care in South Africa.

The right to electricity in South Africa

2022-11-25T05:11:09+00:00

In this note, we examine access to electricity as a right in South African law. We also consider whether deprivations, interferences and disruptions of electricity supply are justifiable limitations of the right. While recent court decisions view access to electricity as a supplement to the Bill of Rights, judicial treatment of electricity as a right precedes the Constitution of the Republic of South Africa, 1996. Prior to the adoption of the Constitution, the courts treated access to electricity as a common law right in the context of servitudes and personal and contractual rights. Under the Constitution, the right to access to electricity flows from the constitutional and statutory obligations of Eskom, South Africa's power utility, to provide reliable electricity supply and to ensure just administrative action when taking actions that result in the deprivation of electricity. From a Bill of Rights perspective, the cases show that the right to electricity, albeit not expressed in the text of the Constitution, is a condition for the exercise of other rights, including the rights to human dignity and access to adequate housing, water and health care. We conclude that the deprivation of electricity through loadshedding and other interruptions by Eskom, landlords and body corporates are violations of the right to access to electricity. These violations could be remedied through spoliation and constitutional remedies.

Facing the music through environmental administrative penalties: lessons to be learned from the implementation and impact of Section 24G?

2022-11-25T05:13:28+00:00

Section 24G was inserted into the National Environmental Management Act 107 of 1998 to provide a mechanism for authorising activities that commence unlawfully. It contains South Africa's only environmental administrative fine - and a quasi one at that. The section has spawned much debate and controversy, including the fact that its existence and purported abuse undermine the fundamental objectives of environmental impact assessments - a cornerstone of government's legislative and decision-making response to the environmental right. This article presents certain results of the first part of an empirical study which explored the criticisms of section 24G; the extent to which it has a deterrent effect, and the lessons that can be learned in designing an administrative penalty system. Approximately 400 people, including representatives from government, the regulated community and environmental consultants were interviewed or surveyed. The results yielded several observations. This article focuses on the extent to which the section is used and the degree of awareness and knowledge about section 24G. The second part of the study probes the deterrent effect of section 24G in more depth by considering the influence that experience – either own or other's – has had on the regulated community.

The legal relevance of nature-based solutions for sustainable urban development in South African secondary cities

2022-11-25T05:14:57+00:00

South Africa, like many other countries worldwide, strives for sustainable development. Increasing urbanisation and climate change are two of the main drivers of the global pursuit of sustainable development. Nature-based solutions have been receiving increasing attention as a possible way not only to move cities towards environmental resilience but also to aid them in their efforts to achieve sustainability. Nature-based solutions use natural structures and ecosystems to address certain challenges experienced in and around cities and share a clear link with sustainable urban development. Nature-based solutions further aim to address social issues such as human well-being, environmental issues such as loss of biodiversity, and economic issues such as food insecurity, while sustainable urban development requires the integration of social, ecological and economic factors. Secondary cities in South Africa have been found to be located advantageously to aid development in both urbanised and more rural areas. Sustainable urban development in these cities, and possibly nationally, could be promoted using nature-based solutions, but South African law needs to be receptive thereto. This note aims to highlight briefly how and to what extent the country’s environmental law as applicable to local government is attuned to the idea of nature-based solutions for sustainable urban development with a focus on secondary cities.

The need for monitoring and assessment of legal aid quality in South Africa

2022-11-25T05:15:39+00:00

Legal aid is needed in South Africa as one mechanism for poor South Africans to realise their legal rights and to use the law as a vehicle for positive social change in a grossly unequal society in which deep poverty is rife. However, simply having a legal aid service provider is insufficient if the quality of such services is not satisfactory. But how can high quality legal services be ensured? This paper considers how different forms of legal aid service provision can be effectively monitored and assessed to ensure that satisfactory standards of legal aid work are delivered. Categories of "legal aid" (broadly construed) which are considered are legal NGOs, including university law clinics, the state's Legal Aid South Africa telephonic advice, and pro bono work by private lawyers. Separate research has focussed on the need for much improved coordination between legal service providers to promote co-operation among legal aid services. The next step is to ensure that such coordination leads to quality services and promoting quality control mechanisms which are appropriate and which can be considered best practice. This paper analyses and discusses this next step. If legal aid is not of an adequate standard or quality assurance is not in place, the legal aid is not serving a positive function. The paper considers viable means for vetting the quality of these free legal services in a South African context, including telephonic legal advice in the Covid era. It suggests mechanisms to promote high-level free legal service provision by assessing the quality of such services. Legal aid quality control methods abroad were analysed to serve as an indicator of the options used in this regard in those jurisdictions. The question to be answered is what quality control measures are most apposite in the South African legal aid arena

A legal perspective on sustainable development and urban poverty in South Africa

2022-11-25T05:18:08+00:00

The doctrine of sustainable development has its origins in the realm of international environmental law. This article considers its potential usefulness for the purposes of alleviating urban poverty in South Africa. Urban poverty is an endemic and persistent phenomenon in South African cities, which lack economic and social integration. In the realm of international sustainable development discourse, it has come to be acknowledged in more recent years that sustainable development is intertwined with issues of poverty. South African legislation and case law acknowledge sustainable development but do not consider its possible usefulness as an underpinning doctrine for urban poverty alleviation. The potential of the doctrine for this purpose has been justifiably questioned on several grounds. However, it is possible to conceptualise ways in which it can be deployed as a theoretical basis for initiatives towards such alleviation. It is argued in this article that all three branches of government in South Africa should play a role in achieving this.

Lessons from UNCITRAL for reforming the South African legal framework concerning security rights in movable property

2022-11-25T05:21:00+00:00

This article analyses the South African legal framework governing security rights in movable property with a view to inspire law reform. The analysis is based on a comparison of the current South African framework with the UNCITRAL Legislative Guide on Secured Transactions, a soft-law instrument containing international best practice. The problematic aspects of the South African framework benchmarked against the UNCITRAL Guide are: (1) not having a common legal framework that applies equally to all types of (including quasi-) real security transactions; (2) the scope of the current framework not being comprehensive (inclusive) enough; (3) not having an efficient enough method of creating the security right; (4) the current publicity method, particularly concerning special notarial bonds, being overly cumbersome and not providing effective public notice to third parties; and (5) the current enforcement measures potentially not being the most efficient. Finally, regarding each of these problem areas, the article makes proposals on how the South African legislature could reform the current framework into one that is legally efficient and in step with international best practice.

Genetically modified mosquitoes to fight malaria in Nigeria, Burkina Faso, Mali and Uganda: what legal response?

2022-11-25T05:22:14+00:00

Advanced applied research on genetically modified (hereafter GM) insects is being undertaken to control insect vectors of human diseases such as mosquitoes. GM insect technologies are being developed in countries where there is a legal framework for genetically modified mosquitoes (hereafter GMM), but the beneficiaries of such insect technologies to control insect-borne diseases are most likely to be in malaria-endemic countries where the regulation of GM insect technologies is inadequate. Although no commercial release of GMM has been conducted in Africa yet, there may be prospects for the use of GMM to control malaria in malaria-endemic countries such as Nigeria, Burkina Faso, Mali and Uganda. Nigeria has the highest rate of deaths related to malaria in Africa and will potentially be targeted by companies seeking to introduce GMM as a public health tool in African countries. Research is being carried out on GMM in Burkina Faso, Mali and Uganda in collaboration with foreign companies. Whereas the control of diseases is certainly needed and there are potential public health benefits for GM insect technologies to address mosquito control, there are environmental and health concerns, and there is also the potential of the misuse of such technologies. Consequently, the use of GMM requires prior robust domestic, regional and international regulation. While the Cartagena Protocol on Transboundary Movements of Living Modified Organisms (LMOs) to the Convention on Biological Diversity (hereafter the Cartagena Protocol) and voluntary guidelines on the testing of GM mosquitoes are applicable with respect to GM insect technologies, there is a lack of international and regional guidance on the regulation of such technologies. Domestic legislation tends to focus on GM crops and is inadequate for regulating GMM. This paper discusses the legal response for the above African countries which may perhaps use GMM as a public health tool and makes recommendations for the necessary regulatory response.

Judging the holy cow: examining the role of implicit bias in judicial rulings –an analysis of the decision in Mbena v Minister of Justice and Correctional Services 2015 4 All SA 361 (ECP)

2022-11-24T04:50:33+00:00

This contribution is an investigation into the role of implicit (as opposed to explicit) biases in judicial rulings by examining the judgment of Chetty J in Mbena v Minister of Justice and Correctional Services 2015 4 All SA 361 (ECP). Implicit bias refers to prejudice on a visceral level, namely unconscious bias, of which the bearer, to wit the judicial officer, is unaware. I suggest that exploring implicit bias in judicial rulings in the context of South Africa's harsh stigmatising shaming culture driven by incarceration as its dominant sentencing regime, will introduce a valuable window in identifying, as well as possibly illuminating and eliminating, unjustified and harmful biases. In this contribution I specifically focus on the generalised bias against ex-offenders in South Africa's harsh stigmatising shaming culture (which I distinguish from integrative shaming cultures found in Japan, China and many African societies) which attitude perpetuates the marginalisation, stigmatisation and discrimination of offenders which exceed their court-sanctioned punishment. I attempt to outline the reasons as to why the isolation and elimination of social biases of this nature are important since, in the view of many criminologists but particularly John Braithwaite, stigma is counter-productive and criminogenic as it leads to enhanced recidivism rates. To this end, I analyse the salient features of the case within a broad social context (including a consideration of phenomena such as the prison-industrial complex on South African soil) which exceeds a narrow legal framework. My roadmap for the paper encompasses a consideration of the salient, albeit disputed, facts of the case with a view towards an alternative, if plausible reading based on the probabilities of the two sets of conflicting facts presented by the opposing parties. I highlight the significance of the judgment before recommendations for improved public policy formulation are proffered

Language discrimination in the context of South African workplace discrimination law

2022-11-25T05:23:23+00:00

This contribution considers the role of language as a prohibited ground of unfair discrimination in the workplace in South Africa, an area of law that has been somewhat neglected in the literature to date. It starts by setting out the constitutional and legislative framework for the protection of language rights and the prohibition of unfair discrimination based on language as a listed ground. With a brief comparative reference to other prominent jurisdictions, it then explains the potential ways in which an employer may unfairly discriminate against employees based on language, following which it considers the potential grounds for the justification of language-based discrimination in the workplace. After consideration of the sparse case law on the topic in South Africa, it highlights a few specific issues regarding language and workplace discrimination, before concluding with some thoughts on potential future developments.

The Supreme Court of Zimbabwe's Chigwada decision and its implications for testamentary dispositions and enforcement of Section 26 of the Constitution of Zimbabwe

2022-11-25T05:24:01+00:00

The Supreme Court of Zimbabwe recently handed down a judgment on the determination of whether the law that governs testamentary dispositions of estates binds a testator to bequeath his or her share of property to the surviving spouse. This was an appeal case against the judgment of the High Court which had held that a testator is bound to leave his or her property to the surviving spouse. Albeit the fact that section 5(1) of the Wills Act establishes the doctrine of freedom of testation, section 5(3)(a) of the Wills Act prohibits a testator to execute a will that disinherits a surviving spouse. The provision has been interpreted inconsistently by the High Court for the past years. One category of judgments held that a testator could disinherit a surviving spouse based on freedom of testation and that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In contrast, the other set of dissenting judgments held that a will that disinherited a surviving spouse was invalid. Further, the courts held that the provisions of the Deceased Estates Succession Act, in particular section 3A which grants a surviving spouse the right to inherit the matrimonial home applies to testate succession. In overturning the High Court decision, the Supreme Court authoritatively held that section 5(3)(a) of the Wills Act could not be interpreted to mean that a surviving spouse cannot be disinherited in a will. The Court based its decision on the doctrine of freedom of testation entrenched in the Wills Act and the Constitution. The Supreme Court also conclusively held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In arguing her case in the Supreme Court, the surviving spouse among other arguments contended that section 26 of the Constitution of Zimbabwe provides for equality of rights of spouses and the protection of children and spouses upon the dissolution of marriage through death or divorce. The Supreme Court disapproved the previous High Court decisions which held that a will that disinherited a surviving spouse was invalid as it contravenes section 26 of the Constitution. The Court held that section 26 of the Zimbabwean Constitution is not directly enforceable, does not bestow rights on individuals and does not prohibit the disinheritance of a surviving spouse. The Court held that the provisions of section 26 are found under the National Objectives which are intended to guide the state in the formulation of laws relating to dissolution of marriage through death. In this article, I argue that the Supreme Court decisively answered the discordant questions on whether a surviving spouse can be disinherited through a will and whether the provisions of the Deceased Estates Succession Act apply to testamentary dispositions. However, the Court missed an opportunity to develop the Zimbabwean jurisprudence on the enforcement of National Objectives, in particular section 26 of the Constitution.

The management of African workers' Wages at South African mines: law and policy before 1948

2022-11-25T05:24:37+00:00

The re-enactment of the context and the purposes of past laws obviates the resort to "principled forgetfulness", since South African law is recalled in a manner that is connected to its morality. The discussion of officially recorded policy vis-à-vis Africans at the mines and other relevant spaces reveals that from its formation the Chamber of Mines had a strict policy of keeping African wages particularly low. Sanctioned policy and practices facilitated this outlook in the implementation of labour law. Additionally, unsatisfactory employment conditions routinely short-changed workers of the amounts due. This evaluation demonstrates how the prohibiting of Africans from reaping monetary advancement from the profits of mining was the cornerstone of economic development and attainment of prosperity by white society in South Africa.

The Industrial Conciliation Act 11 of 1924 is notable for banishing Africans from recognition as employees who could engage in collective bargaining and served to further impair the already precarious position of African workers. Ironically, though Africans could not bargain, the determinations of industrial councils were permitted to change their employment conditions in order to maintain the priviledge of white workers. Under this regime African wages remained extremely low, in line with supposed tribal needs, while the "civilised" community reaped far greater benefits. The effects of this were evident in the heightened economic pressure experienced by African workers and their dependants. By 1944 there had been hardly any increase in the wages of African mineworkers, but the working conditions had become more onerous. Invariably the rationale was that an improvement in the wages of African workers would have the effect of dislocating established economic processes, thereby impeding the welfare of the colony. This was the rationale despite evidence clearly showing that the wages of Africans were so inadequate that they resulted in the widespread hardship and worsening impoverishment of African communities.

This retelling of the historical law, coupled with prevailing attitudes that presented African workers as peripheral in the larger tale of productivity, has the objective and effect of rearranging the narrative somewhat. Undoubtedly the story of Africans is still being told through the colonial blueprint of labour and its management, but by reading the law focussing on Africans, rather than the community it was intended to serve, the noticeable spillage of vexed African presence disturbs the integrity of the law. A shift in consciousness is likely to occur as the counter-narrative, hidden within the hegemony, animates. Joining efforts to decolonise endorsed accounts of the past, this contribution reveals how paid labour stands out as a mechanism of oppression rather than an antidote to the proclaimed backwardness of Africans.

Promoting access to justice through the broadcasting of legal proceedings

2022-11-25T05:26:10+00:00

This article considers a lack of legal literacy as a barrier to access to justice. The article then considers the potential effectiveness of introducing media-based teaching tools to South African society in an attempt to increase the rights awareness of South Africans. In so doing, the article proposes ways in which this improved rights awareness can assist South Africans to engage with the law, their rights, and the judicial system as a whole in a manner which promotes improved access to justice. It considers television-based teaching tools already implemented in the country as well as possible future interventions. It draws on past television-based education initiatives in South Africa in an effort to consider how South Africans engage with television-based teaching tools. It further draws on the open justice principle to argue for the increased broadcasting of legal proceedings. The article then considers television in three other jurisdictions and undertakes an assessment of the effect of television on our cognitive and subliminal engagement with the law. The discussion on other jurisdictions includes how fictional legal programming, syndicated court programmes as well as other forms of "Court TV" have contributed both positively and negatively to the legal consciousness of those societies.

The trial of civilians before Courts Martial in Uganda: analysing the jurisprudence of Ugandan courts in the light of the drafting history of Articles 129(1)(d) and 210(a) of the Constitution

2022-11-25T05:27:26+00:00

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline.

King v De Jager: implications for religion-based discrimination in wills

2022-11-25T05:28:23+00:00

In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the gender-discriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding gender-discriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC.

An appraisal of the legal framework on parole in Nigeria

2022-11-24T13:00:55+00:00

Parole is a new correctional measure in the Nigerian penal system. Before 2015 inmates could be released before the expiration of their terms of imprisonment only if they were granted pardons by the governor of a state or by the president. However, this has changed with the coming into force of the Administration of Criminal Justice Act of 2015 (ACJA). The ACJA empowers courts, upon the recommendation of the comptroller-general of the Nigerian Correctional Service, to release inmates on parole. The ACJA also states the two conditions that the comptroller-general must consider before he recommends inmates for parole. The first condition is that the inmates must be of good behaviour, and the second is that the inmates must have served their non-parole periods. While there is no ambiguity on the first condition, the scope of the second condition is not well stated in the ACJA. The ACJA states that inmates that are sentenced to at least fifteen years or life imprisonment must have served at least one-third of their sentence before they can be recommended for parole. However, the ACJA does not state the minimum period that inmates who are sentenced to less than fifteen years of imprisonment must have served before they can be recommended for parole by the comptroller-general. Second, life imprisonment in Nigeria theoretically means imprisonment for the remaining period of the natural life of the inmates upon whom such a sentence has been imposed. In this light it is not clear how the comptroller-general would calculate one-third of an indeterminate sentence for the purpose of determining when to recommend such inmates for parole. Another notable omission in the ACJA is that it does not state the conditions that courts may attach to the release of inmates on parole. Also, ACJA does not make provision for medical parole. To make parole an effective correctional measure in Nigeria, this article suggests that the ACJA should be amended to address all these weaknesses

The appraisal right in terms of Section 164 of the Companies Act 71 of 2008: an overview

2022-11-25T05:29:30+00:00

The appraisal right in terms of section 164 of the Companies Act 71 of 2008 has been applicable to fundamental transactions undertaken by companies for a number of years. The first two aims of this article are first to provide an overview of the appraisal right, and second to revisit certain concerns that were raised about the determination of fair value by the courts where a shareholder makes an application to court for a determination of fair value. It is suggested that this should not present a major problem in practice, considering that existing practice in takeover laws requires the valuation of shares by an independent expert when a company undertakes an affected transaction. In the main, the requirements for fundamental transactions overlap with those for affected transactions. The requirements for affected transactions adequately deal with the determination of fair value. The third aim is to provide an overview of how companies attempt to limit the effect of the appraisal right on fundamental transactions using various terms and conditions precedents, and the fourth is to discuss developments in case law on the appraisal right remedy. It is concluded that the decisions of the courts on its application will assist companies in structuring fundamental transactions and shareholders in exercising the appraisal right. Finally, the article suggests reasons for including certain subsections in the appraisal right remedy, for instance, the power of the courts to award costs in certain respects and a requirement that extends the time periods within which a shareholder may make a demand where the company fails to comply with specific requirements. It is suggested that this enhances the ability of shareholders to exercise the appraisal right. The article also provides concluding remarks advising companies and shareholders. In the case of companies, it concludes, for instance, that due diligence in identifying the risk that certain shareholders may raise appraisal rights is required before initiating a transaction that may be subject to appraisal rights. Failure to do so may be costly to the company. And, in the case of shareholders, failure to adhere to the required procedures may result in loss of their appraisal right remedy, or loss of the right to approach the courts for an appropriate relief under the appraisal right remedy.

Corporate power, human rights and urban governance in South African cities

2022-11-25T05:31:28+00:00

This article is concerned with the extent to which corporations involved in governing South African cities and towns are bound to the developmental objectives and socio-economic rights that urban governance efforts are constitutionally required to pursue. It considers the constitutional powers of local government over such non-state actors, evaluates their co-option and accountability in terms of local government legislation and discusses the evolution of their residual "horizontal" constitutional responsibilities.

Independent candidacy and electoral reform: New Nation Movement NPC v President of the Republic of South Africa

2022-11-25T05:32:03+00:00

In the New Nation case, the Constitutional Court declared the provisions of the Electoral Act that prevent independent candidates from competing in provincial and national elections unconstitutional. It ruled that the impugned provisions violated independent candidates' constitutional rights to stand for public office, to freedom of association and to dignity. In a minority judgment, Froneman J disagreed and held that the Constitution contemplates a right to contest elections as a party-nominee only. The differences between the majority and minority judgments are largely the result of distinct interpretive approaches. The majority conducted an analysis of the right to stand for public office within a restricted textual framework that has the potential to disturb the harmonious inter-relationship between the right and the electoral and parliamentary framework for its realisation. This result flows from the fact that the Constitution still reflects the exclusively party-based electoral and parliamentary systems of its predecessor in several important respects. At best, this situation may result in independents being largely at the mercy of political parties for meaningful execution of their legislative and oversight obligations. At worst, they may be excluded from exercising core parliamentary functions altogether. Therefore, to avoid disturbing the normative coherence between the right to stand for public office, the foundational democratic values, and the electoral and parliamentary arrangements, constitutional amendments appear to be necessary for the implementation of the court's order. In any event, expectations about the contribution to electoral reform of allowing independents to contest elections must be tempered by the low political impact of independent representatives on governance, as well as the ambivalence surrounding the democratic functionality of independent candidacy, when measured against the values of transparency and accountability.

The control and eradication of invasive species in urban areas in terms of South African law: The City of Cape Town and Polyphagous Shot Hole Borer Beetles

2022-11-25T05:33:41+00:00

The introduction and prevalence of invasive species is an alarming reality in South Africa. The emergence of invasive species has resulted in harmful consequences on various levels and has adverse impacts on the environment and the economy. Hence, biological invasions demand attention. The control and eradication of invasive species can serve to minimise their adverse impact. In 2019 the South African National Biodiversity Institute highlighted the threats posed by biological invasions in South Africa and specifically identified Polyphagous Shot Hole Borer Beetles as a significant new invasive species in South Africa that has a demonstrable ongoing detrimental impact on varieties of trees. Polyphagous Shot Hole Borer Beetles have been detected in various urban areas in South Africa, including the City of Cape Town. This note briefly examines the control and eradication of invasive species in urban areas in terms of the South African legal framework, specifically against the backdrop of the emergence of the Polyphagous Shot Hole Borer Beetles in the City of Cape Town.

Forfeiture of patrimonial benefits and the dissolution of marriage through death: Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020)

2022-11-25T05:34:31+00:00

Section 9 of the Divorce Act 70 of 1979 provides for the forfeiture of patrimonial benefits when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage. This case note discusses the possibility of an order for forfeiture of patrimonial benefits when a marriage dissolves after death under certain circumstances. It follows on the Supreme Court of Appeal decision in Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020). The respondent, the estranged first surviving spouse, and the deceased were married in terms of customary law in 2007. In 2008 the deceased left the matrimonial home. In 2009 the respondent entered into a civil marriage with another person. In 2010 the deceased also entered into a customary marriage with the appellant, the second surviving spouse. In 2012 the deceased died. Following his death, both the appellant and the respondent, as surviving spouses, were appointed co-executors of the deceased estate. The appellant sought an order directing the Master to withdraw the appointment as co-executor of the first surviving spouse on the ground that she had renounced her earlier customary marriage to the deceased when she entered into a civil marriage with another person. Alternatively, she sought an order in terms of section 9 of the Divorce Act that the first surviving spouse forfeit patrimonial benefits in favour of the deceased estate. The High Court, Polokwane granted the order. However, on appeal the full bench, Polokwane overturned the decision of the court a quo. The appellant took the decision of the full bench on appeal to the SCA. The SCA dismissed her appeal and upheld the decision of the full bench on the ground that a forfeiture order can be made only during divorce proceedings and it may be brought only by a party to the marriage and not by a third party. This note turns on this aspect of the decision. It will be argued that a forfeiture order should be available when a marriage is dissolved through death. It will also argue that a second spouse is a party to a customary marriage.

Die toepassing van die Wet op Beroepsgesondheid en -veiligheid en ander veiligheidsmaatreëls by skole se tegnologiewerkswinkels

2022-11-25T05:35:07+00:00

Empirical research conducted by education researchers over a period of approximately 20 years confirms that uncertainty exists whether the provisions of the Occupational Health and Safety Act (OHSA) apply to technology workshops at academic, technical and special schools; whether compliance with the safety provisions of the OHSA is lacking; and whether serious injuries at technology workshops at schools occur from time to time. A comparative study of foreign law regarding occupational safety at technology workshops at high schools confirms that many countries have national or federal occupational safety and health statutes that apply to workplaces as well as public schools, although some have specific statutes or regulations addressing occupational safety at public schools. Countries like Germany, the Netherlands and some states of the United States of America define school-going children and students as "workers" in terms of their occupational safety legislation. Germany includes all school-going children in its statutory accident insurance scheme to provide for faultless compensation in case of injury. In determining whether the OHSA applies to technical workshops at high schools, the fundamental rights, as well as its spirit and purport, must be considered through the prism of the Constitution of the Republic of South Africa. Applying the traditional literalist-cum-intentionalist approach to the interpretation of the OHSA, the conclusion is that this Act does indeed apply to technology workshops at schools. In terms of section 60(1)(a) of the South African Schools Act state liability for damages occurring as a result of school activities does provide essential legal protection. However, the South African Schools Act, school safety policies and school infrastructure regulations do not make explicit provision for the application of health and safety standards at school premises that use potentially dangerous machinery and equipment in places such as technical workshops and science laboratories. It is therefore recommended that the OHSA, the Compensation for Occupational Injuries and Diseases Act, the Schools Act and the School Infrastructure Regulations be amended to provide legal certainty in respect of the application of occupational safety to technical workshops at high schools.

Re-examining the Constitutional Court's approach to the property question since First National Bank of SA Ltd T/A Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd T/A Wesbank v Minister of Finance 2002 4 SA 768

2022-11-25T05:49:38+00:00

The First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) (FNB) decision led to the development of several questions that need to be answered when deciding whether there had been a deprivation of property for the purposes of section 25(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The first question that needs to be asked when deciding whether there has been deprivation is whether that which was taken away from the property holder qualified as property for the purposes of section 25(1).

It appears that the Court in post-FNB case law fails to decide the first question in a principled manner. In some cases the Court simply assumed that the interests at issue were property for the purposes of section 25 without a thorough investigation or clear guidelines regarding whether such interests were indeed property. Analysis of post-FNB case law also indicates that there are seemingly two approaches that may need to be followed to decide complicated categories of property interest. The Court has not made it clear which approach should be followed.

In this article, I examine the Constitutional Court's approach to deciding what property is for section 25(1) purposes. The purpose is to determine how and to what extent the Court has decided what constitutes property for constitutional purposes. After an examination of the FNB decision and post-FNB case law, as well as analysing academic criticism, I suggest guidelines that the Court may follow to decide what constitutes property for section 25(1) purposes in future cases.

Relevance, admissibility and probative value in a rational system of evidence: a South African perspective

2022-11-25T05:37:01+00:00

In the South African legal system of fact finding and proof the relevance of an evidentiary fact is not governed by the rules of the law of evidence but by a set of extra-legal principles based on the logic of inferential reasoning and probability theory. However, there is no definitive legal definition, or practical test, of what constitutes relevance in a post-constitutional South African curial context, except for an ambiguous pre-1961 reference to a "blend of common sense, judicial experience and logic, laying outside the law". This article critically evaluates the relationship between relevance and admissibility in the adversarial adjudicative process, with particular reference to the peculiarities of the South African legal system, in which the procedural framework of the fact-finding process has been subjected to a post-apartheid constitutional democracy. In addition, this article provides an interpretative synthesis of prevailing international scholarship in the field, develops a functional three-legged practical relevance test for ease of application by all legal practitioners in the courtroom and provides a uniquely different possible statutory definition of relevance and admissibility.

Appraisal of selected themes on the impact of international standards on labour and social security law in South Africa

2022-11-24T13:38:18+00:00

For many years, South African courts have relied on International Labour Organisation conventions to interpret and give meaning to the fundamental social security and labour law rights enshrined in the Constitution, 1996. Social security and labour law has been one of the ILO's major initiatives of promoting decent work agenda since its inception in 1919. Decent work refers to the availability of employment in conditions of freedom, justice, security and human dignity. This is a multidimensional concept introduced by the ILO in 1999. It has four key components, namely, employment conditions, social security, workplace rights and social dialogue. To this end, the preamble to the ILO Constitution sets out several objectives in this regard, including the protection of workers from illness, accidents, the protection of children, women, and the support of the elderly. The ILO pursues these noble values and goals by developing international labour and social security standards, which member states must ratify and incorporate into their national law. The purpose of these ILO standards is to provide a standard framework or regulatory tool to guide member states in establishing, improving and maintaining social security and labour law systems domestically, regionally and internationally. Against this background, this article examines selected themes on the impact of international standards on labour and social security rights enshrined in the Constitution. It looks at some of the relevant international instruments which have influenced the promotion and protection of these rights. Furthermore, it shows how the courts have infused these standards into their judgments in South Africa.

Once, twice, three times delayed: considering a permanent stay of prosecution in Rodrigues v The National Director of Public Prosecutions

2022-11-25T05:38:07+00:00

The National Prosecuting Authority is vested with the power, as dominus litus, to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statute such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay under section 35(3)(d) of the Constitution of the Republic of South Africa, 1996. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. This contribution discusses the recent judgment in Rodrigues v The National Director of Public Prosecutions against the backdrop of the principles relating to permanent stays as established by South African courts. Both the majority and minority judgments are discussed and evaluated to discern important themes and considerations. It is argued that the judgment is a strong reminder of the significance of the right to a speedy trial.

Environmental stewardship: confluence of law and religion?

2022-11-25T05:39:20+00:00

Why should we bear responsibility for the degradation of the environment? A wide range of responses is on offer to this question. Common to them all is that they are all rooted in one or the other ontological and epistemic point of departure or set of premises. This raises the question of the relationship between law and religion and linkages of religion with environmental concerns. What emerges, perhaps against the volition of the scientific world, is that the foundational links between environmental law and religion are significant – even where environmentalists shirk from or even denounce religion. Justification of this view is found in a concise survey of the essence of law and religion. The analysis leads to the notion of stewardship, a concept steeped in, but not exclusive to religion in its diverse manifestations. Examples of ecocentric religious attitudes – ranging from the traditions of the North American Anishinabek, aboriginal Australians and indigenous African culture to Buddhism and Hinduism, Judaism and Christianity in its principal manifestations – provide a broad picture of adherence to beliefs in human responsibility to take care of the environment. This widespread conviction of stewardship endures despite awareness of the human inability to create or sovereignly to determine the course of nature (here termed "the hypothesis of incompetence").

Defining the urban edge -a guide to its implementation for sustainable development

2022-11-25T05:40:04+00:00

As relics of the legacy of apartheid, the boundaries of cities have expanded exponentially. The notion of the urban edge has therefore been introduced as a planning tool to prevent further sprawl and has become an integral part of spatial planning. Court judgments provide guidelines for the interpretation of the notion, but they do not give direction regarding how it should be implemented.

Various factors, both planning and environmental, impact on the success or failure of the implementation of the urban edge. It is also a Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) requirement that the drafting of the Spatial Development Framework (SDF) (which may incorporate an urban edge) must consider environmental management instruments.

The demarcation and periodic review of an urban edge is an important and complex exercise. The writer submits that an acceptable definition of it is necessary to help resolve the difficulties involved in this process. Section 24 of the Constitution (which is indicative of a compact and sustainable urban environment) requires consideration, as do the interdependence of urban and rural areas. Having a uniform definition of the urban edge would be useful as a guideline to municipalities when demarcating and managing it.

As the urban edge may be depicted in a municipal SDF in terms of SPLUMA, and as it is a planning tool, it is recommended that the definition be established by and included in SPLUMA. The definition proposed below incorporates various elements found in existing definitions.

The payout of a life insurance policy into an unrehabilitated insolvent's estate: Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020)

2022-11-25T05:42:03+00:00

One of the consequences of sequestration is the vesting of the property of an insolvent person in the trustee of the insolvent estate. However, not all the property of the insolvent person vests in the trustee as there are some exceptions. Under section 63 of the Long-Term Insurance Act 52 of 1998, life insurance policy benefits are excluded from forming part of the insolvent estate and thus do not vest in the trustee and are unavailable for the payments of the debts of the insolvent. The exclusion of these benefits diverts property from the insolvent estate and, consequently, the creditors who could benefit from the property. This note discusses Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020) and considers whether a beneficiary of a life insurance policy payout is required to hand over such payment to the trustee of his insolvent estate. Further, it highlights the conflicting provisions between insolvency legislation and insurance legislation and examines the effects of section 63 on an insolvent estate where the insolvent was married in community of property.

Copyright reform in South Africa: two joint academic opinions on the Copyright Amendment Bill [B13B-2017]

2022-11-24T14:13:21+00:00

South Africa is in the process of reforming its copyright law, attempting to update and align it with constitutional rights and existing and prospective international treaty obligations. With the adoption of the Copyright Amendment Bill [B13B-2017] by both Houses of Parliament in March 2019, the apartheid-era Copyright Act of 1978 had almost successfully been amended, when the President of the Republic withheld his assent to the Bill referring it back to Parliament citing reservations about its constitutionality. Following calls for public comment by the parliamentary Portfolio Committee on Trade and Industry on the President's reservations, a coalition of copyright and constitutional law experts, convinced of the constitutionality of the Bill, submitted two legal opinions to the Committee. The two opinions presented in this contribution underline the importance of copyright reform, as envisaged in the Bill, to bringing South African copyright law into the digital age and realising several constitutional rights including the rights to education, cultural participation, language, freedom of expression, and access to knowledge of everyone, without discrimination

Prosecuting human violations committed in the Anglophone Cameroon crisis: a disquisition on the legal framework

2022-11-24T14:17:59+00:00

The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's ʺdemocraciesʺ which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis.

Uncertainty about the condonation of formally non-compliant wills, and the rectification of cross-signed mirror wills: is an act-based model the solution?

2022-11-24T14:31:39+00:00

A recent contribution proposed a processual act-based approach to conceptualising wills in South African law. This approach regards a will as the product of a will-making process in which various parties perform specific acts with specific associated forms of intention in order to establish a will. The act-based model also paves the way for the introduction of an intent doctrine in South African law. This article tests the functioning of the proposed act-based model by applying it to two scenarios: the condonation of formally non-compliant wills in terms of section 2(3) of the Wills Act and the rectification of cross-signed mirror wills in terms of the common law. Both scenarios continue to be plagued by uncertainty as a direct consequence of the lack of a proper definition, explanation and contextualisation of testator's intention in South African law. Regarding condonation, it is found that, because the courts are often left guessing or speculating as to testator's intention, they inevitably overemphasise other aspects such as the form of the document to establish intention for the purposes of condonation in terms of section 2(3). An act-based model could ensure that the decision to condone or not to condone relies solely on whether the document embodies the act of testation. If the act of testation is found to be present (no matter in which shape or form, or by whom it was drafted), the document embodying such an act should be condoned. In terms of rectification, in turn, the act-based model highlights the important distinction between content and formality – the act of testation as opposed to compliance with the statutory formality requirements through the execution of a will. It appears that rectification is appropriate only where an error has caused a discrepancy between the testator's true intention and the intention as expressed in the act of testation contained in the will. Rectification seems less appropriate when dealing with cross-signed wills, which are the result of a flawed execution process. Instead, condonation is much better suited for correcting the formal non-compliance of cross-signed wills.

Direct-to-consumer genetic testing in South Africa: stumbling over the first legal hurdle?

2022-11-24T14:35:03+00:00

Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South African literature on the topic. The limited available research suggests that direct-to-consumer genetic testing is unregulated. However, we suggest that direct-to-consumer genetic testing is indeed regulated, and unusually so. The first step in the process – the collection of a saliva sample by consumers themselves – is unlawful on a plain reading of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material. This is because these statutes require that certain healthcare professionals must remove saliva for genetic testing. Yet, on closer analysis, such an apparent ban on the self-collection of saliva is neither aligned with a purposive interpretation of the relevant legislation, nor would it survive constitutional scrutiny – as it impedes an individual's autonomy. It is concluded that, contrary to a plain reading of the relevant statutes, individuals can lawfully collect their own saliva for direct-to-consumer genetic testing. To provide legal clarity we recommend that the relevant provisions of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material be amended to allow individuals to collect their own saliva samples.

The constitutionality of the National Health Insurance Bill: the treatment of asylum seekers

2022-11-24T14:40:39+00:00

As the supreme law of the land, the Constitution of the Republic of South Africa, 1996 (the Constitution) requires that any law or conduct be consistent with its provisions. The Draft National Health Insurance Bill, 2019 (the Bill) is no exception. Clause 4 of the Bill states that South African citizens, permanent residents and refugees will have access to quality health care services whilst asylum seekers and undocumented migrants will have access to emergency medical services, as well as services for notifiable conditions of public health concern. The treatment of asylum seekers is concerning given the fact that asylum seekers are a vulnerable group which enjoys special status under international law. This article seeks to assess the constitutionality of clause 4 of the Bill in so far as it limits the access to health care services for asylum seekers. The objective is to ascertain the extent to which the differential treatment of asylum seekers is permissible. Clause 4 of the Bill will be benchmarked against sections 9 and 27 of the Constitution and international law.

Debunking the Master of the High Court's assumed approval authority over a redistribution agreement in a deceased estate

2022-11-24T14:43:23+00:00

A redistribution agreement is one of the available methods to assist the executor in winding up a deceased estate. It may be used to overcome impractical situations and/or statutory limitations that might occur during the estate administration process. The heirs and legatees and, in some instances, a surviving spouse may then agree to the reshuffling of their inheritance awards. The Chief Registrar of Deeds issued a directive that places a burden on the Master of the High Court in approving the "acceptance" of the agreement as part of the registration application for the transfer of immovable inheritance property. This was in response to a legal opinion from the office of the Chief State Law Advisor, incorporated in a 2010 internal Master's directive on instruction of the Chief Master. It directed that a redistribution agreement is deemed enforceable only after the Master "duly examined and approved" its legality. However, the Master's practice of approving a redistribution agreement is not a rule of law and cannot supersede the provisions of a statute. This article investigates whether the Master, as a "creature of statute", is acting within the parameters of its statutory administrative acts and functions involving a redistribution agreement.

The Protection of Personal Information Act 4 of 2013 in the context of health research: enabler of privacy rights or roadblock?

2022-11-24T14:46:00+00:00

Data is an exceptionally valuable asset – it is a fundamental part of the information age and is widely regarded as the world's most valuable resource. A key issue that has caused some debate in South Africa in recent times relates to the Protection of Personal Information Act 4 of 2013 (POPIA), and whether the Act requires broad or specific consent in the context of health research. The primary purpose of this article will be to answer the following question: does POPIA require broad or specific consent from persons who take part in health research? In a health research context, POPIA must be considered together with, inter alia, the National Health Act 61 of 2003 (NHA), and the Health Professions Act 56 of 1974 (HPA). As a point of departure, in terms of the NHA, health research requires the informed consent of participants. Informed consent has been a part of South African law for almost one hundred years, and gives effect to an individual's dignity and autonomy. The NHA does not directly distinguish between types of consent, but the Department of Health's second edition of Ethics in Health Research: Principles, Processes and Structures (the DoH Ethical Guidelines) does. The practice of broad consent is not only endorsed by the DoH Ethical Guidelines but encouraged. However, unlike the medical-legal framework, POPIA – which should be referred to as the privacy framework, or "privacy layer" in relation to data compliance in health research – requires consent to be specific as well as informed. If one considers the applicable sections of POPIA, and South Africa's interpretive tools and jurisprudence, it is apparent that consent in health research should as a matter of best practice be specific.

Book review: Canefe N Critical Perspectives on Crimes against Humanity: The Limits of Universal Jurisdiction in the Global South (University of Wales Press 2020)

2022-11-25T05:17:15+00:00

In the current anti-accountability sentiment that has plagued most of Africa, triggered by the nasty politics of selectivity that is primarily motivated by considerations of realpolitik or the interests of specific states, Canefe's book lays bare the fundamental moral, legal and philosophical standpoint that advances the argument that perpetrators of mass atrocities must be held accountable. Unfortunately, the reality is different. She explores the vast (and almost impossible) impediments to attaining such an objective. Recognising the distinct and persuasive voices echoed by scholars from the Global South, the book examines the utilitarian effectiveness of using universal jurisdiction as a means towards this end. The critical views and responses of scholars who belong to TWAIL (an intellectual blog that is hotly and hardly contested by their counterparts from the Global North) expose, debunk and denounce the legitimacy of international law. The book argues that an international legal order that is largely mono-culturalistic, developed from selected principles, values and opinions from the West, cannot and should not be taken as a prototype of the global legal order. Instead, legal pluralism as a distinct feature of a diverse and multicultural world requires that a consensus is obtained: this is crucial if the world seeks to achieve what she calls a "neutralized universalization" of international law.

Personal tribute to Charl Hugo

2022-11-23T07:20:32+00:00

No abstract.

A tribute to Charl Francois Hugo

2022-11-23T07:22:47+00:00

No abstract.

Charl Hugo: a friend and dear colleague

2022-11-23T07:25:00+00:00

No abstract.

Editorial: Festschrift for Charl Hugo

2022-11-24T14:37:30+00:00

No abstract.

Re-Orientation

2022-11-23T07:28:26+00:00

No abstract.