Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

Book review: Mehdi R Understanding Gender and Diversity in Europe: Experiences of Migrant Single Mothers in Denmark (Springer Nature Switzerland 2024) ISBN 978-3-031-40892-2; ISBN 978-3-031-40893-9 (eBook)

Fungisai GA Gcumeni — 2025-12-29

This contribution reviews the book by Mehdi R Understanding Gender and Diversity in Europe: Experiences of Migrant Single Mothers in Denmark (2024). The book explores the varied and intricate encounters of Pakistani migrant women as they navigate European multicultural societies whose normativity is founded on individualism against their traditional collectivist relational approach to family. The study critically analyses the gender notions that single-migrant mothers and women face in a world of competing social and economic theories, namely neoliberalism and neo-conservatism at different generational epochs of migration. Drawing on multiple theoretical and complementary perspectives, it provides deep insights into to lived realities of single migrant women.

Book review: Robin Fretwell Wilson and June Carbone (eds) International Survey of Family Law 2023 ed (Intersentia UK 2023)

Fungisai GA Gcumeni — 2025-12-29

The International Survey of Family Law 2023 edition is a golden jubilee commemoration of its momentous achievements, recognised globally for its scholarship on developments, reform initiatives and emerging trends on family law. The series commences with personal chronicles and successive chapters providing overviews of continuing evolutions in family law over half of the past century from a global jurisprudential perspective. The book engages various aspects of personal and family law, with traditional, modern influences and controversial influences, accentuating the progressive move over the five decades from a homogenous perspective on personal law systems to pluralistic systems of governing family law.

Spesisisme, Antroposentrisme en die Gebruik van die Holocaust-Metafoor in Dierebevrydingsdiskoers: 'n Reg-en-Letterkunde-Perspektief

Jan-Harm de Villiers — 2025-12-29

In this article I illustrate the challenges accompanying the utilisation of law in the service of animal liberation and simultaneously investigate the capacity of literature as a counterweight. I illustrate that the subject centred model of the law and specifically the construct of (animal) rights, which currently constitutes the most progressive use of the law for the advancement of animals’ interests, is grounded in an anthropocentric metaphysics of subjectivity that solidifies the human as patriarchal centre of beings. I subsequently identify the law and discourse of (animal) rights as sites of anthropocentric oppression and call for a critical approach that identifies anthropocentrism as its target. I draw on the work of Russian literary theorist Mikhail Bakhtin to illustrate how the polyphonic novel can destabilise the (authority of the) law and accommodate the voice(lessness) of the animal in a way that exposes and circumvents the fundamental anthropocentric limitations of the law. I furthermore analyse the way in which JM Coetzee utilises the Holocaust metaphor in his novella The Lives of Animals and argue that he not only foregrounds the critical importance of anthropocentrism for animal ethics, but also allows us to understand and approach intersectionality in a way that transcends the boundaries of inter-human injustices because he emphasizes that there are important links between the violence directed at both animals and humans.

What to expect when you're expecting: Considering a supervisory constitutional remedy to address obstetric violence in public healthcare

Simone Gray — 2025-12-29

Obstetric violence is perpetrated against birthing or pregnant people and includes verbal abuse, performing procedures without consent, physical violence, denial of pain medication, and neglect. This conduct violates various constitutional rights, including the right to dignity, equality, healthcare, bodily integrity, privacy and, in some cases, the right to life, as research has established a link between maternal mortality rates and obstetric violence. This problem appears to be systemic and if litigated on, may require a remedy aimed at bringing about structural change. The constitutional provisions on remedies provide for appropriate relief which is just and equitable. The remedy prescribed must also be effective. In instances where systemic issues arise, our courts have used supervisory constitutional remedies to bring about effective relief. The focus of this article is to consider the use and development of supervisory constitutional remedies and to look at other instances where systemic failures have occurred, identifying how the courts have used different supervisory remedies such as structural interdicts, independent oversight over compliance and the appointment of a special master, to address a systemic problem. I show that the specific circumstances that were present in the cases where supervisory constitutional remedies were used, also exist in a case dealing with obstetric violence.

The power to deduct pension benefits under Lesotho's Pension Funds Act: Lessons from South Africa and Eswatini

Mtendeweka Mhango — 2025-12-29

The changing demands of society and the emergence of new challenges necessitate the constant evolution and improvement of legal frameworks. In November 2019 Lesotho adopted the Pension Funds Act 5 of 2019 to modernise its regulation and supervision of private pension funds. Previously pension funds were regulated under the Income Tax (Superannuation and Assurance) Regulation, 1994 (Superannuation Regulation). Industry participants were of the opinion that the Superannuation Regulation was inadequate for the complexity of Lesotho's private pension funds system. The primary purpose of the Pension Funds Act of 2019 is to safeguard the financial interests of pension fund contributors and ensure their receipt of retirement benefits on retirement. With limited exceptions, section 40 of the Act prohibits the transfer or deduction of pension benefits. This article investigates the legal framework that regulates the power of a pension fund to deduct from pension benefits as well as the limitations on this power. The purpose of the article is to propose possible interpretations of the power to deduct, with the intention of assisting those who are involved in its implementation.

The motivation of climate action through free trade agreements: What does the AfCFTA Agreement bring to the 2015 Paris Agreement on Climate Change

Vieviene Antifon — 2025-12-29

Global climate change mitigation within the framework of the 2015 Paris Agreement on Climate Change essentially revolves around a hybrid of bottom up and top-down state action. However, regional climate action in Africa is not entirely defined by the Paris Agreement due to inevitable intersections with actions directed towards the organisation of trade within a state, as well as multilateral cooperation with other states in regional trade agreements. The widely acknowledged implication of this intersection between regional trade governance and climate change mitigation is that regional free trade agreements like the 2020 Africa Continental Free Trade Area Agreement (AfCFTA Agreement) have the potential to advance or hinder climate mitigation objectives within a particular construct.

In addition to the foregoing understanding on the connections between trade governance and climate change, as well as the opportunities for harmonisation or conflict, there is an existing lack of clarity about the specific possibilities that the AfCFTA Agreement brings to the climate change objectives of the Paris Agreement. This article, therefore, explores how climate action can be adequately motivated through regional trade agreements, using the novel interaction between the AfCFTA Agreement, which came into effect in January 2021, and the 2015 Paris Agreement on Climate Change. It examines the implications of trade governance for climate policy under the AfCFTA framework, and how those outcomes align with and promote the objectives of the Paris Agreement. By focussing on the intersection between climate change and regional trade agreements, the contribution of this article to scholarship is the elaboration of the burgeoning practice of motivating climate action through regional trade agreements within the context of the novel interaction between the AfCFTA Agreement and the Paris Agreement.

Forfeiture to the state: Using grammar to interpret Section 35 of the Criminal Procedure Act

Terrence R Carney — 2025-12-29

Section 35(1)(a) of South Africa's Criminal Procedure Act 51 of 1977 allows a court of law to declare items forfeited to the state if they were used as weapons or instruments in aid of committing an offence. However, it is not always clear what qualifies as potential instruments of crime or what the proximity of the instrument is to the offence. For the purpose of statutory interpretation, this contribution identifies a grammatical construction frequently present in abstractions of offence descriptions as a means to identify an instrument and its direct involvement in an offence. It takes the form of the construction, "X does Y to Z with A", which contains the instrument prepositional phrase "with A". Read with other thematic roles like "Agent" and "Patient", the statutory interpreter should be able to determine both the relevant instrument role and its potential to affect a change in the object of a sentence, suggesting direct involvement. To better understand the grammar, this contribution modestly explains the Cognitive Linguistic approach to argument structure and thematic roles and briefly summarises Ronald Langacker's "action chain" model. The grammatical construction is then applied to examples taken from South African and Dutch case law dealing with forfeiture to illustrate its potential as a tool for interpretation.

Confusion in the judicial review of board decisions to remove directors under Section 71 of the Companies Act 71 of 2008

Rehana Cassim — 2025-12-29

A significant innovation of the Companies Act 71 of 2008, contained in section 71(3), is that the board of directors of companies is empowered to remove directors from office. Within twenty business days directors so removed may apply to court under section 71(5) of the Companies Act to have the board's decision reviewed. Section 71(5) is an essential remedy for directors. More than ten years after the promulgation of the Companies Act South African courts are beginning to develop the jurisprudence on the interpretation of section 71(5). This article examines recent cases in which courts had to interpret section 71(5) of the Companies Act. It discusses the following issues that these cases canvassed: (i) whether the board's power to remove a director under section 71(3) of the Companies Act constitutes administrative action and whether the Promotion of Administrative Justice Act 3 of 2000 applies to the review of these decisions under section 71(5) of the Companies Act; (ii) the ambit of a section 71(5) review and whether courts may review both the procedural aspects and the merits of the board's decision; (iii) the trigger for the twenty-business-day period to run; (iv) whether a court may condone a section 71(5) review application brought after the twenty business days expire; and (v) the awarding of costs in a successful section 71(5) review. As this article shows, courts have disagreed with and contradicted one another on the correct interpretation of section 71(5). This disagreement has led to confusion in South African law regarding the judicial review of board decisions to remove directors.

Developing an effective regulatory regime for e-commerce in the Southern African Development Community (SADC): Proposed solutions

Vongai Chimeri — 2025-12-29

The outbreak of the Coronavirus Pandemic (COVID-19) in 2019 has accelerated digital transformations particularly in the area of e-commerce. The imposition of public health-related lockdowns limited physical movement and increased the demand and use of e-commerce worldwide. While other businesses in developed countries saw the outbreak of the COVID-19 as an opportunity to expand their digital markets, in Africa, particularly in the Southern African Development Community (SADC) it highlighted the need to bridge the digital divide both within and across the region, that continues to hinder greater participation in e-commerce activities. A regulatory framework that harmonises e-commerce laws to enhance legal certainty and predictability is considered important to enable the development of e-commerce. Although the SADC Model Law on Electronic Transactions and Electronic Commerce (SADC Model Law) was adopted with the aim of harmonising e-commerce laws in the SADC region, the regulation of e-commerce in the SADC remains inadequate, fragmented and in some instances outdated. This article examines the regulation of e-commerce in the SADC and concludes that it does not support the development of e-commerce in the region. It identifies some challenges that are inhibiting the development of e-commerce and offers some solutions that might help enable the development of e-commerce in the SADC.

The imputability of sub-income under Section 7(3) of the Income Tax Act 1962

Petra Claassen — 2025-12-29

Section 7(3) of the Income Tax Act 58 of 1962 counters income splitting arrangements by imputing income received by a minor child by reason of a donation, settlement or other disposition made by the minor child's donor parent to such donor parent, thereby subjecting the imputed income to the donor parent's normal tax rate. The construction of the phrase by reason of has been a point of contention in cases dealing with sub-income (income on income). The secondary literature shows disagreement on whether it is still possible to successfully argue, as was done in the past, for an interpretation of by reason of that excludes sub-income from the scope of section 7(3). In addition to this disagreement, key judgments on the imputability of sub-income were delivered in 1949 and 1955, predating the enactment of section 39(2) of the Constitution of the Republic of South Africa, 1996 and the landmark judgment in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 2 All SA 262 (SCA), which introduced significant shifts in the landscape of statutory interpretation. This study applies the Endumeni interpretative framework to section 7(3), with the discussion being structured around the modalities of the augmented Savignian Model. The analysis reveals that the present reliance on the Appellate Division's pre-1996 judgment in CIR v Widan is justified and therefore that sub-income may be imputed to a donor parent under section 7(3) if the parent's donation, settlement or other disposition is the effective (or proximate) cause thereof.

Reconsidering the admissibility of expert forensic evidence in South African criminal proceedings

Chevaure Du Pokoy — 2025-12-29

Expert forensic evidence can be of great assistance in criminal proceedings. However, the question that must be answered is whether and to what extent there is science in any forensic science discipline. In the last twenty years there have been growing concerns about the admissibility and reliability of expert evidence in criminal trials. Many common law jurisdictions have raised concerns about traditional admissibility standards and their inability to filter out unreliable expert forensic evidence. As a result of these concerns, a number of these jurisdictions have adopted and now apply reliability criteria for the admissibility of this evidence.

In South Africa, expert forensic evidence is admissible if it is relevant. The reliability of the evidence is determined at the end of the trial when the evidence is evaluated. This article examines this position and argues that the current position does not require an assessment of the reliability of expert forensic evidence at the admissibility stage, allowing expert forensic evidence of doubtful reliability to be admitted. It is argued that the admissibility of this evidence should be reconsidered by introducing a reliability standard as a precondition for admissibility.

Five shaky pillars – A criticism of the reasoning on which the Stay at South Point Properties v Mqulwana (SCA) decision rests

Sarah Fick — 2025-12-29

In July 2023 in the case of Stay at South Point Properties (Pty) Ltd v Mqulwana the Supreme Court of Appeal (the SCA) found that student accommodation does not constitute a "home" in terms of section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). Section 26(3) of the Constitution provides that "[n]o one may be evicted from their home … without an order of court made after considering all the relevant circumstances." The students' "residence" was not their "home". This meant that they could not rely on the protection provided by section 26(3) of the Constitution or the legislation giving effect to this right, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE). This note identifies five shaky pillars that the decision rests on and argues that these pillars may be too weak to uphold the judgment. Importantly, the note does not aim to determine whether a residence should in fact be considered a home. Rather the note intends to highlight the problems with the reasoning of the court in coming to its conclusion.

Endumeni and water trading in the superior courts: Falling short of a unitary approach to statutory interpretation

Tracy-Lynn Field — 2025-12-29

This article critiques recent decisions on water trading in the superior courts in light of the approach to statutory interpretation set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA). The Endumeni approach, which is the preferred modern approach to statutory interpretation, entails a unitary interpretive technique whereby text and context are interpreted together from the outset. Following CSARS v United Manganese of Kalahari (Pty) Ltd 2020 4 SA 428 (SCA), context extends beyond the statutory enactment to constitutional, historical and purposive considerations. The article presents an updated account of the Endumeni approach and analyses five water trading decisions through this lens. It finds that the water trading decisions fall short of a unitary approach as a result of their failure to anchor their analysis in the correct parts of section 25 of the National Water Act 36 of 1998, over-reliance on the statutory context, limited consideration of constitutional, historical and purposive contexts, and reliance on arguments indirectly invoking the intention of the legislature.

A critical analysis of the proposed law on the employees' right to disconnect in Kenya

Kambo Gathongo — 2025-12-29

The right of employees to "disconnect" from work-related communications has emerged as a concern in employment laws in recent times. Many employees find it increasingly challenging to disconnect from their duties at the end of the workday, and in Kenya, this is no exception. In the contemporary era of advanced technology, employees are tethered to their workstations beyond regular working hours. Employers regularly request or direct employees to complete assignments, activities and other projects beyond their contractual working hours in modern workplace environments. This supplemental teleworking is often unpaid overtime. The practice significantly undermines employees' time for rest and privacy, jeopardises their safety and health, and hampers productivity and remuneration. Kenya has taken steps to address this increasing workplace hazard by proposing stringent regulatory measures to grant workers the right to disconnect from their workplace environment beyond the contractually agreed working hours. Although all employees deserve the right to disconnect, the question is whether the new legislation is necessary. This article analyses the recent draft of the bill that seeks to introduce the right to disconnect in Kenya in regard to its scope, efficiency and implications for employees. The article argues that the "right to disconnect" or "connect" is catered for under the current provisions of the Employment Act of 2007 in the scope of overtime regulation. The passage of the Employment Act (Amendment) Bill of 2022 into law in Kenya would, therefore, be an unnecessary duplication of the law.

Thin capitalisation safe harbour rules: A proposed conceptual legislative design

Lize Goosen — 2025-12-29

Current legislation in respect of thin capitalisation is viewed as unclear and complex, which has resulted in both the Davis Tax Committee and National Treasury commenting that thin capitalisation safe harbour rules should be investigated for introduction into South African legislation. The aim of this article is to propose a conceptual legislative design for the introduction of thin capitalisation safe harbour rules into South African legislation, for non-complex inbound financial assistance transactions whilst still achieving compatibility with the arm's length principle. The Australian, New Zealand and Canadian thin capitalisation rules were examined to determine in what manner these countries have incorporated thin capitalisation rules into their legislation and to evaluate their compatibility with the arm's length principle. By designing domestic legislation to include specific features for the safe harbour rules, it is possible to introduce safe harbour rules into South African legislation that still achieves compatibility with the arm's length principle. The proposed conceptual legislative design may inform legislative amendment or the practice of the South African Revenue Service.

The duty of employers to return disabled workers back to employment: A comment on the 2023 draft regulations on rehabilitation, reintegration and return to work

Estie Gresse — 2025-12-29

Persons with disabilities are a large, disadvantaged minority, comprising approximately 12% of the population. Since the COVID-19 pandemic, it has become essential for all stakeholders to formulate strategies to mitigate the potential loss of employment for all citizens in South Africa, including those who become disabled during employment. In 2008 South Africa ratified the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities, thus committing itself to giving effect to its obligations, which include the reasonable accommodation of disabled employees. Article 26 of the CRPD mandates that state parties take effective and appropriate measures to enable persons with disabilities (PWDs) to attain and maintain maximum independence and physical, mental, social and vocational ability, and to ensure their social inclusion. Article 27 of the CRPD stipulates inter alia that States Parties shall safeguard and promote the realisation of the right to work, including the right of those who incur a disability during employment. South Africa does not have disability-specific legislation, and reasonable accommodation measures are set out in a fragmented manner in legislation, policies and other relevant codes. South Africa amended the Compensation for Occupational Injuries and Diseases Act 130 of 1993 in 2018 and again in 2023. On the 15^th of June 2023 South Africa further published draft regulations on rehabilitation, reintegration and return to work, which require careful consideration and analysis by all role-players in a return-to-work (RTW) arrangement. It is unclear how the new amendments will affect the existing employer obligations to reasonably accommodate, as set out in other labour legislation. An analysis of the current duties will provide some recommendations for role clarification.

Parole for Lifers: The constitutional court Errs in Walus v Minister of Justice and Constitutional Development

E Gumboh — 2025-12-29

Janusz Walus was sentenced to death for the murder of Chris Hani in 1993. With the advent of the Constitution and the S v Makwanyane Constitutional Court judgment, his sentence was converted to life imprisonment in 2000. Walus became eligible for parole in 2005 in terms of the Correctional Services Act 8 of 1959. However, his release was denied on several occasions by the Minister of Justice. Following a series of court challenges, Walus challenged his continued imprisonment before the Constitutional Court in 2022. The central issue before the Court was whether there is a point at which denial of parole for a prisoner serving life imprisonment is no longer justifiable by the crime's seriousness and the court's sentencing remarks. More broadly, the Walus case speaks to whether eligible prisoners can justifiably be denied parole on the sole basis of factors beyond their control. The decision is also significant in interpreting the phrase "sentencing remarks" in the parole board policy. While the Constitutional Court made the correct decision in releasing Walus on parole, its reasoning is questionable. The Court erred in interpreting the Parole Board Manual and the law.

SPLUMA: The transformation of land use planning administration and governance in South Africa

Aneri Heukelman — 2025-12-29

The physical administration of land use planning and management underwent a fundamental change upon the enactment and implementation, of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA), partly because section 33(1) of this Act provides that the municipality is the body of first instance for land use applications. The structural and administrative change of decision-making and record-keeping moved from a dual system of land-use administration, formerly shared by the provincial government and the local government, entirely to being the responsibility of the local government. This included the land use administration of traditional areas, mostly land owned by national government. This also implies that the historical division between urban, rural, traditional and agricultural areas, has been unified under the municipal area in terms of the wall-to-wall land use scheme and subsequent land use planning and development administration. This follows the 1996 constitutional requirement that municipal areas cover the entire country. This article considers the transformation of land use planning administration and governance in terms of land use planning and development administration. It considers the legislative frameworks, before and after the promulgation of the Constitution of 1996, that inform land use planning and relevant to the transformation to the SPLUMA land use management system. The administrative effects that changing legislation and geographical structures have on the land use system are discussed.

Dispute resolution in sectional title schemes: Ideas for improving the Ombud Service

Jacomina G Horn — 2025-12-29

Dispute resolution in sectional title schemes in South Africa has come a long way – from litigation, to the arbitration mechanism introduced by management rule 71, to referral to the Ombud Service created by the Community Schemes Ombud Service Act 9 of 2011 (the CSOSA). The two-stage dispute resolution mechanism provided by the Ombud Service, comprising conciliation and adjudication, has undoubtedly reduced the number of sectional title disputes reaching our courts. It also saves applicants time and money. However, judging by case law of matters that, having gone through the Ombud Service process, ended up in court for clarity, there is room for improvement in the implementation of the CSOSA and the operation of the Ombud Service. This article first examines selected case law to highlight some practical challenges detracting from the effectiveness of the CSOSA and its dispute resolution system. Secondly, a comparison between the CSOSA and New South Wales's Strata Schemes Management Act 50 of 2015 offers further insight into how the South African system may be streamlined. Key recommendations relate to the training requirements for adjudicators and other staff of the Ombud Service, as well as the introduction of a provision that specifically deters court applications where disputes can and should be resolved by the Ombud Service. An internal appeals mechanism, to be conducted by the Ombud Service itself, may also be beneficial – not only to lighten the judiciary's load, but also in light of the current murkiness around the correct way for bringing adjudication appeals to court.

An analysis of the legal nature of SDG 6 within the context of international water law

Muhammad S Kasker — 2025-12-29

Through the Sustainable Development Goals (SDGs), a pledge was made to renew the commitment to sustainable development and to ensure the promotion of an economically, socially and environmentally sustainable future for our planet and for the present and future generations. Water access and conservation are categorised as SDGs by way of SDG 6, which involves a commitment to ensuring the availability and sustainable management of water and sanitation for all. It is one of the most significant goals in terms of its potential impact on development outcomes. Since the state of access to water has been an obstacle for development in many parts of the world for a long period of time, and since there have been increasingly urgent warnings of a global water crisis, SDG 6 has the potential to fast-track the global water agenda by bringing these issues and potential solutions to the fore. The current SDGs are widely regarded as a global effort to recognise basic human rights and needs and to ensure the enjoyment of these needs. Thus, it is pertinent to understand the legal status of SDG 6 (and SDGs in general) within the international community. The fact that these goals are so widely accepted cannot be ignored and their impact is pivotal in awakening the global conscience with regard to key issues within human society and the ecology. The aim of this article is to determine the legal status of SDG 6 by examining the principles of international law and by making comparisons with certain international law instruments and policies related to water and freshwater law.

BRICS and Climate Change Law: An opportunity to save the planet

Maksim Lavrik — 2025-12-29

Climate change is a global problem requiring the cooperation of different states to cope with it. It has been a major concern for the international community, which has responded mainly through several United Nations treaties and other international bodies, for example the United Nations Framework Convention on Climate Change. Despite having a huge appeal to all countries, the implementation of climate change interventions has yet to produce the desired results. The BRICS+ initiative presents an opportunity for further cooperation with like-minded countries that are at the forefront of driving the global economy. BRICS+ also presents an opportunity for cooperation to address climate change. This paper analyses how countries' cooperation under the BRICS contributes to developing the international climate change regime. BRICS is a bloc of top emerging economies - Brazil, Russia, India, China, and South Africa - which has been growing since January 2024 by adding new member states such as Egypt, Ethiopia, Iran, Saudi Arabia, and the United Arab Emirates (UAE). This paper evaluates relevant provisions of the Johannesburg II Declaration of 2023 and the climate pledges of original and new BRICS members expressed in their Nationally Determined Contributions (NDCs) under the Paris Agreement. Based on this evaluation, the article concludes with a common vision for the development of climate change policy by the bloc and an assessment of how the differences and similarities of approaches of the BRICS members contribute to cooperation in addressing the climate change challenge.

When the inherent authority of the High Court trumps parental authority in medical decision-making involving the withdrawal of life support treatment affecting minor children and their parents

Henry Lerm — 2025-12-29

Judges are often up against very grave cases when they have to decide whether to order the withdrawal of life support from children who are seriously ill or in a vegetative state. What is more, medical practitioners attending to the medical care of the child affected, believe that clinically it would be in the best interest of the child that his or her life should be terminated. Any continued medical treatment would be futile. The parent(s) on the other hand do not agree with the medical team. Because the parties involved cannot reach agreement the dispute is consequently referred to the High Court. It is then up to the court to make the final decision. In this triad, some of the fundamental legal issues to be decided, include: who should have the final say over the withdrawal of life support treatment for minor patient? What criteria does the court use in resolving the dispute between the parties? This article provides a critical insight into when the High Court's inherent authority trumps parental authority in end-of-life decision making affecting minor children. What will become apparent is that the South African High Court has only sporadically been asked to exercise their inherent authority to interfere with a parent's decision-making power when, because of religious reasons, parents refuse to consent to their children being exposed to blood transfusions. Here, the High Court has often come to the rescue of children by adopting an orthodox approach. The court will firstly, in search of the welfare of the child, exercise its authority as upper guardian of children. Secondly, the court will search for the welfare of the child under the rubric of "what is in the best interest of the child". The South African High Court, unlike its English counter-part, has not been exposed to cases dealing with end-of-life decisions involving children. What is called for is for the South African courts to develop its own jurisprudence. A likely starting point would be for consideration to be given to South African domestic law, including the Constitution, the common law and customary law infusing African jurisprudence. To this end, the South African High Court is also urged to consider the well-developed criteria found in the English cases. But, before the parties engage in litigation, where possible, mediation should be attempted.

A comparative critique of the Cybercrimes Act 19 of 2020: Positioning South Africa vis-à-vis Australia

Casper Lötter — 2025-12-29

Proceeding from the twin premises that international cooperation is essential to fight cybercrimes effectively and that there is a need to make South African legislation more robust, I consider the provisions of the Budapest Convention on Cybercrime as well as the African Union's Convention on Cyber Security and Personal Data Protection for guidance. My methodology is poststructuralism, which is suitable for my subject matter as it allows me to even consider contradictory evidence next to uncompromised material. I am particularly interested in examining international ideas that could enhance the cyber preparedness of the South African cyber ecosystem to assess the strengths and weaknesses of South Africa's Cybercrimes Act in a comparative, international context, with reference to Australia. I argue that it is necessary to view the international scene regarding both the Budapest Convention and the African Union's Convention to situate the Australian experience in the proper perspective. Cybersecurity and awareness are, after all, a team sport. Apart from the valuable insights gained from the Budapest Convention on Cybercrime and the African Union's Convention on Cyber Security and Personal Data Protection (notably the East African experience), I find an examination of Australian policy and practice to be particularly invigorating. I find three lessons gathered from the Australian experience prudent to enhance the South African cyber environment and legislation. These are the formation of a proactive new (federal) task force (comprising one hundred of the top cyber experts in Australia) by the federal government, making payment of a ransom demand illegal, and ensuring that the retention of sensitive personal data is curtailed as much as possible (to prevent its exposure after a hack). I conclude the piece by expressing the hope that this contribution may inspire cyber criminologists to explore other profitable angles within the international frame.

Bridging the gap between Human Rights Education and school safety in South Africa

Mahlatse I Maake-Malatji — 2025-12-29

Human Rights Education (HRE) is formally integrated into South Africa's basic education curriculum, yet violence, abuse, and harassment continue to undermine effective teaching and learning. Despite the constitutional guarantees and international obligations, schools remain unsafe, exposing learners to weapons, bullying, sexual violence and community-linked crime. This gap between policy intent and lived realities raises critical concerns about the effectiveness of HRE implementation and the Department of Basic Education's role in ensuring learner safety. This study examines the extent to which weak enforcement, inadequate teacher training and limited learner engagement compromise the transformative potential of HRE. Employing a doctrinal approach, it reviews constitutional provisions, international standards, empirical evidence of school violence, and safety frameworks such as the National School Safety Framework. The findings demonstrate that the issue lies not in the absence of legal frameworks or curricular content, but in the inconsistent implementation and lack of collaboration between schools, communities, and enforcement agencies. The study contributes to ongoing debates by emphasising the need to strengthen HRE delivery, enhance teacher preparedness and improve enforcement mechanisms. Providing safe schools is framed as both a constitutional duty and a prerequisite for equitable education. Future research should explore how insights derived from addressing school violence may inform employment law reforms, particularly regarding workplace safety and protections against harassment.

Towards a sustainable blue economy for Namibia and its coastal communities: A contemporary socio-legal perspective

Chiedza LA Machaka — 2025-12-29

Namibia's sustainable blue economy plan is influenced by the recognition that the typical single sector regulation approach to the aquatic ecosystem lacks synergies and coordination. The Blue Economy Agenda is a policy instrument for unifying and regulating economic activity for the benefit of Namibian citizens. The policy that provides for integrated sustainable management of the aquatic ecosystem seeks social inclusion, equitable distribution of natural resources, and prosperity for the public benefit. Such resource utilisation must be done in a way that promotes environmental health and sustainability. Namibia has laws in place that seek to regulate the blue economy and to ensure that policy objectives are met. However, such laws, in particular the Marine Resources Act 27 of 2000, exclude the recognition of marginalised coastal communities and small-scale fisheries sector from their scope. This exclusion is likely to undermine the need to promote social inclusion, the equal sharing of benefits, and of access to marine resources. This article addresses the prospects and challenges of fully utilising Namibia's aquatic ecosystems to meet the country's developmental agenda. Written from a socio-legal perspective, the article will argue for an integrated and/or comprehensive strategy to achieving a sustainable blue economy that is inclusive and beneficial to all Namibians, including the marginalised coastal communities and the small-scale fisheries.

Exploring the right to work for persons with disabilities in Zimbabwe as an enabler to inclusive participation in economic development

Takudzwa J Mafongoya — 2025-12-29

Article 27 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) provides for the right to work for persons with disabilities (PWDs). Zimbabwe, as a party to the CRPD, is obliged to put in place progressive positive measures for the protection, promotion, and enjoyment of the right to work by PWDs. In light of the international obligations arising from the CRPD, the African Charter on Human and Peoples Rights and the African Disability Protocol, this article examines the existing legal framework on the right to work for PWDs in Zimbabwe, including the other types of disabilities entitled to benefit from PWDs’ substantive right to work. Additionally, this article critically analyses the scope and extent of the protections (if any) attaching to the right to work for PWDs in Zimbabwe. Therefore, the article adopts a desktop approach whereby existing statutes and texts are examined, focussing on their utility towards the respect, protection, promotion, and realisation of the right to work for PWDs in Zimbabwe. In conclusion the article offers recommendations on ways the right to work can be fully realised by PWDs in Zimbabwe as a catalyst for the inclusive participation of PWDs in the economic development of Zimbabwe, both in the public and private sectors, on an equal basis with their peers without disabilities.

A patent problem – When the misapplication of law collides with an error of law: Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2023 4 BCLR 461 (CC)

Nomthandazo Mahlangu — 2025-12-29

The judgment in Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2023 4 BCLR 461 (CC) emanates from the order of the Court of the Commissioner of Patents in the High Court of South Africa, Gauteng Division, Pretoria (CoP), that refused Bayer leave to amend its plea. In this matter, Bayer accused Villa of infringing its patent. Refuting the claims, Villa attacked Bayer's patent validity, counterclaimed for its revocation, and subsequently gave notice to amend its pleadings. The CoP refused the application, which marks the point of dispute in this case. This note evaluates whether the CoP correctly exercised its discretion in refusing the application to amend the claim. It further examines issues of law that the Constitutional Court had to resolve, whether (a) the matter is a constitutional matter, (b) it raises an arguable point of law of general public importance, and (c) it is in the interests of justice for leave to appeal to be granted. The note concludes by offering an opinion on whether the decision considered current concerns about our patent system.

The changing face of money in the 21st century: Legal and regulatory implications for South Africa

Tsanangurai Makuyana — 2025-12-29

Historically, the concept of money was closely tied to material goods and sovereign fiat currency. However, advances in technology, societal values and global economic systems are all contributing to the increasing transformation of the concept of money. The 21st century has, therefore, seen the digitalisation of value through developments such as mobile-based financial solutions, cryptocurrencies and central bank digital currencies (CBDCs). These developments challenge long-standing legal definitions and regulatory standards of money, especially in jurisdictions such as South Africa, where socio-economic inequality and financial progress must coexist. This article examines the conceptual and historical underpinnings of money in order to determine if the legal definition of money has changed in response to this evolution. It examines the conventional understanding of money, the emergence of digital currencies, and the consequences for the South African legal system. The article finds that although new forms of money have been accepted, the basic idea of money has not altered much. It concludes by offering various legal and policy interventions to the South African authorities for possible implementation in their regulatory responses to the ever changing face of money.

An analysis of the impact of the risk-based approach to combat money laundering and the financing of terrorism on financial inclusion in South Africa

Luck Mavhuru — 2025-12-29

A risk-based approach entails the development of appropriate risk control measures based on a process of the identification and categorisation of risk in a bid to prevent and combat such risk. This approach includes the tailoring of rules to focus on instances of higher risk and it gives private actors more discretion on how to employ risk-based approach measures. It requires regulated institutions to exercise sound judgement and respond appropriately to any identified risks. The risk-based approach seeks to make regulation better and more costeffective by ensuring that control requirements are commensurate with actual risk, such that the greatest risks receive the most attention, while lower risk warrants more simplified control measures. In the South African context, the shift from a rules-based to a risk-based approach was formalised through the 2017 amendment of the Financial Intelligence Centre Act. This shift introduced flexible customer due diligence (CDD) requirements, empowering financial institutions to align their compliance measures according to the assessed risk of each customer. The aforesaid changes were intended to encourage financial service providers to open their doors to previously excluded customers. This article analyses the implementation of the risk-based approach by South African financial service providers and evaluates its practical implications for financial inclusion. It interrogates whether the risk-based framework has succeeded in balancing the dual objectives of safeguarding financial integrity and expanding access to financial services to the poor, the vulnerable and low-income earners.

Socio-legal reflections on Zimbabwe's lithium industry: The role of public participation in resource governance and environmental justice

Hoitsimolimo Mutlokwa — 2025-12-29

Zimbabwe has one of the largest lithium deposits in Africa. As the world strives to decarbonise and to relinquish energy sources that produce harmful emissions, the demand for lithium is rising to astronomical levels. Zimbabwe's lithium is a prime target for the producers of lithium-ion batteries used in electric cars, smartphones, laptops, and solar panels for domestic use. However, Zimbabwe's law and mining policy need to include measures to ensure that citizens properly participate in and profit from its extractive activities, including the mining of lithium. Outdated mining legislation and past experience show that the exploitation of a resource can be a curse in Zimbabwe, as in the smuggling of diamonds and the sequestration of the wealth generated by gold mining to only a few individuals. Public participation in decision-making in the lithium industry is a scarce commodity, and it is generally expected that a repeat of the catastrophic circumstances of Zimbabwean gold and diamond mining is likely to be seen in the lithium industry. This article examines the social implications of the lack of effective regulation of Zimbabwe's lithium industry. It assesses Zimbabwe's current decision to ban raw lithium exports and answers the question whether this has positive social implications for communities that live near lithium deposits.

Towards a justiciable right to basic education in Nigeria: A commentary on the decision of the court on the Legal Defence and Assistance Project (LEDAP) v Federal Ministry of Education

Perekeme Mutu — 2025-12-29

The right to basic education is a fundamental human right which is recognised globally for its vital role in the transformation of individuals and society in general. The right to basic education is enshrined in the Nigerian Constitution, 1999 as amended as a Directive Principle of State Policy. The right is also recognised in various international and regional instruments of which Nigeria is a signatory. However, unequal access to quality education, inadequate infrastructure and teacher shortages have continued to hamper the enjoyment of this right. The failure of the government to ensure the adequate enjoyment of this right underscores the importance to ensuring accountability of a legally enforceable right to education in Nigeria. The Legal Defense and Assistance Project (LEDAP) v Federal Ministry of Education case presents an opportunity for the courts to once again provide clarity on the nature of the right to basic education. This case marks a significant judicial intervention in the enforcement of the right to basic education as enshrined in the Nigerian Constitution, legislation and international human rights instruments. The article examines the court's interpretation of the constitutional and legislative provisions on the right to basic education, highlighting the court's rationale in affirming the justiciability of the right to basic education. Furthermore, the article examines the broader effect of the decision on the government's commitment to fulfilling its educational obligations in the Constitution and under international law, highlighting the role of the judiciary in enforcing the educational right. The paper argues that while the court's decision marks a significant step towards realising the right to basic education, there is a need for sustained advocacy and government accountability for the right to basic education to become a tangible reality for children in Nigeria.

Reconsidering the banker-customer relationship in the context of mobile banking in Zimbabwe

Felex Muzeya — 2025-12-29

Mobile banking has fundamentally changed the way customers interact with their banks by providing them with unprecedented convenience, flexibility and access to several financial services. The adoption of mobile banking services has continued to grow globally, with an increasing number of people using their mobile devices to perform banking transactions such as peer-to-peer transactions and bill payments, and to access account statements. These innovations have had a substantial impact on the traditional banker-customer relationship. This article examines the relationship between bankers and customers in the context of mobile banking in Zimbabwe with a comparative discussion of Kenya. The article also analyses how mobile banking has changed the traditional obligations and functions of both bankers and consumers. The findings of this research provide insight for both bankers and policy makers. For example, bankers need to recognise the evolving dynamics of the banker-customer relationship necessitated by mobile banking and adapt their modus operandi accordingly. This could create unique and interesting mobile banking experiences and provide users with the assistance and guidance they need to navigate the mobile banking environment. The regulatory environment must support the growth and development of mobile banking services while safeguarding the interests and rights of consumers.

Left in limbo: The status of the handing over of the bride in customary marriages post Sengadi v Tsambo

Fatima Osman — 2025-12-29

Courts are regularly tasked with determining the validity of a customary marriage using the requirements stipulated in the Recognition of Customary Marriages Act. This entails an assessment of whether certain fundamental rituals and practices occurred. One such ritual that appears frequently in recent jurisprudence is the handing over of the bride to the bridegroom’s family, although courts have differed on whether this is a necessary requirement for a valid customary marriage. In the case of Sengadi v Tsambo, the High Court conceptualised the handing over ritual as an extraneous requirement additional to the Recognition of Customary Marriages Act that could be imposed on an otherwise valid marriage, and ruled it unconstitutional to this extent. This article argues that the High Court's declaration of unconstitutionality, while peculiar for positioning the practice of handing over as extraneous to the statutory provisions, was within its powers, effective without further confirmation, and binding on lower courts within its jurisdiction. Upon appeal, rather than clarifying the matter, the Supreme Court of Appeal did not substantively deal with the High Court’s peculiar conception of handing over and ruled that the High Court should not have pronounced on its constitutionality. In doing so, we argue that the Supreme Court of Appeal may have tacitly overturned the High Court’s declaration of constitutional invalidity.

The judiciary's contribution to preventing protected area downgrading, downsizing, and degazettement: Mining and Environmental Justice Community of South Africa v MEC for Agriculture, Rural Development Land and Environmental Affairs (1322/2021) [2024] ZAMPMBHC 48 (18 July 2024)

Alexander Paterson — 2025-12-29

The Kunming-Montreal Global Biodiversity Framework, agreed to by parties to the Convention on Biological Diversity in 2022, commits all countries to ensure that by 2030, 30 per cent of terrestrial, inland water, coastal and marine areas are effectively and equitably conserved and managed in protected areas and other effective area-based conservation measures. This is a weighty ambition given current global and domestic coverage statistics, and countries can ill afford to lose existing areas through protected areas downgrading, downsizing and degazettement (PADDD). The concept of PADDD has received growing international attention, with calls to implement an array of measures to prevent and track its prevalence. Within the South African context, studies on PADDD are few and far between, but this does not mean that events of this nature are not present. Efforts to establish a coal mine in the Mabola Protected Environment (MPE) in Mpumalanga provide a perfect example of downgrading and downsizing events in action, and the judiciary has been called upon on numerous occasions to intervene to halt these events. This note considers the most recent of these judicial interventions, namely that in Mining and Environmental Justice Community Network of South Africa v MEC for Agriculture, Rural Development, Land and Environmental Affairs (1322/2021) [2024] ZAMPMBHC 48 (18 July 2024). It critically traverses the array of review grounds invoked by the applicants to set aside a decision of the relevant provincial minister to remove certain properties situated within the MPE from its borders, to facilitate the establishment of the coal mine. It reflects on several apparent frailties in the court's decision relating to most of these review grounds. It concludes by proposing certain simple legislative reforms to the National Environmental Management: Protected Areas Act 57 of 2003, to improve the regulation of future PADDD events in South Africa, and thereby potentially preclude the necessity of disputes of this nature being brought before the judiciary in the future.

The advertising regulatory board's jurisdiction: Implications of Bliss v Advertising Regulatory Board for public health policy on unhealthy food and beverage advertising

Yolanda T Radu — 2025-12-29

In the trilogy of cases between Bliss Brands, the Advertising Regulatory Board (ARB) and Colgate, the courts considered the self-regulatory powers of the ARB and the extent of its jurisdiction to deliberate on complaints made against an advertiser who is not a member of the ARB. The judgments of the Supreme Court of Appeal and of the Constitutional Court entrenched the advertising industry's self-regulatory regime through the ARB as the industry watchdog. The Bliss Brands decisions, whilst not directly dealing with the advertising of unhealthy commodities, touch on several issues relating to the ARB as a regulatory regime of the marketing industry that are of particular concern to the regulation of the marketing of unhealthy food and beverages. These issues include jurisdiction and independence, which are critical to the attainment of public health objectives. Using the judgments, this case note shows the limitations of self-regulation in curbing the advertisement of unhealthy food and beverages to vulnerable groups.

The practical application of section 24G of the NEMA: A critical and quantitative empirical analysis

Tiisetso John Rantlo — 2025-12-29

The article examines the practical application of section 24G of the National Environmental Management Act 107 of 1998 (NEMA), highlighting its historical context, amendments, and challenges. The Environment Conservation Act 73 of 1989 (ECA) was the predecessor to NEMA, incorporating environmental assessment procedures and prohibiting the commencement of listed activities without environmental authorisation. Section 24G was introduced in 2004 to address the lacuna in ECA and NEMA, allowing developers of unlawful activities to apply for ex post facto environmental authorisation. The current version of section 24G of NEMA allows developers who have contravened section 24F(1) of NEMA to apply for retrospective environmental authorisation, provided they comply with the directives and pay an administrative fine of up to R10 million. Section 24G has been criticised for undermining environmental management principles, being prone to abuse, and causing interpretation challenges despite legislative amendments addressing these issues. The empirical study revealed that the challenges of section 24G include interpretation issues, a lack of uniformity in the contents of the EIA report, and inadequate public participation provisions. The study further revealed that developers apply for section 24G due to ignorance of the law, the need to provide services, and the requirement to bring unlawful activities into the regulatory loop. The empirical study further found that some criticisms, such as those related to sustainable development and environmental management principles, are still valid. In contrast, others are no longer valid, as the process is shorter, less rigorous and cheaper. The article recommends retaining section 24G in NEMA and suggests the government publish guidelines to standardise its application nationwide.

Municipal sewage pollution in South Africa: Evaluating criminal prosecution, legal defences and regulatory reform

Lize Redelinghuis — 2025-12-29

South Africa faces a severe water crisis, worsened by municipal sewage pollution contaminating its already scarce freshwater resources. Despite their constitutional mandate to manage wastewater and sewage disposal, many municipalities operate ageing, poorly maintained and often dysfunctional wastewater treatment works (WWTWs). These facilities often discharge untreated or partially treated sewage into water systems, causing widespread pollution of rivers, dams and groundwater, leading to serious environmental degradation, increased public health risks and reduced access to safe drinking water. By failing to maintain essential infrastructure and prevent sewage overflows into natural water sources, municipalities – as organs of state – have become major contributors to water pollution in South Africa. In response hereto, the state has increasingly turned to criminal sanctions as a means of enforcing accountability.

This article critically examines this emerging trend in holding municipalities accountable, despite constitutional principles favouring cooperative governance. The article further explores the typical legal defences raised by municipalities and their officials in response to prosecution, drawing on recent court decisions to assess how the judiciary has addressed these arguments. Furthermore, it reviews recent legislative and policy reforms aiming to strengthen enforcement and improve accountability in the water and sanitation sector. Ultimately the article assesses the effectiveness of current legal mechanisms and suggests reforms to enhance municipal responsibility and protect South Africa's water resources.

Prescription and access to redress for consumers: A consideration of the prescription provisions under the Consumer Protection Acts of South Africa and India

Tshepiso Scott-Ngoepe — 2025-12-29

The limitation that is placed on the institution of legal proceedings is considered as being important for the purposes of ensuring legal certainty. Considering this, the Prescription Act 68 of 1969 has continued to co-exist alongside section 34 of the Constitution, which guarantees the right to access redress. The Consumer Protection Act 68 of 2008 (CPA) also introduces a specific statutory limitation that applies to transactions that fall within its scope. However, the provision is less nuanced and does not consider instances in which prescription might be interrupted. In many instances this has been to the detriment of consumers. In alignment with the CPA's dispute resolution process, consumers generally initiate their complaints with alternative dispute resolution agents, such as the accredited industry ombuds. Alternatively, consumers might refer their matters to the National Consumer Commission. Unfortunately, cases before the Tribunal have exposed the fact that consumers experience inordinate delays that lead to their complaints prescribing in terms of section 116(1) of the CPA. This article considers how this might be remedied, bearing in mind the prescription provision under the Consumer Protection Act, 2019 of India.

A critical discussion of the law regarding the recognition of traditional leaders and the role of the royal families in South Africa

Siyabonga Sibisi — 2025-12-29

Traditional leadership is constitutionally entrenched in section 212 of the South African Constitution, 1996. As it is the oldest form of government in the country, there is always curiosity pertaining to matters of traditional leadership. The place of traditional leadership in a democracy, where leaders are elected, is also debatable. However, the recent events in traditional communities, including the death of certain notable traditional leaders and the legal tussles that engulfed their nations following their deaths, have sparked an interest in the law regarding the recognition of traditional leaders. This article, therefore, critically discusses the law regarding the appointment of traditional leaders. It discusses the statutory law and the customary law of hereditary succession, as well as the role of royal families in governance. It also considers some contentious issues, such as the succession of people born out of wedlock and of women into positions of traditional leadership.

A cautious approach towards the application of team misconduct - South African Commercial Catering and Allied Workers Union v Makgopela 2023 44 ILJ 1229 (LAC)

S'celo W Sibiya — 2025-12-29

The reality faced by the labour market is that employees are prone to committing acts of misconduct at the workplace from time to time. In case of an unexplained stock loss at the workplace, however, it becomes difficult for the employer to establish a prima facie case that any particular individual employee was involved in the commission of the offence before disciplinary action can be validly taken. Consequently, the notion of team misconduct was introduced to deal with the common challenge faced by an employer who has sufficient proof of stock loss but is unable to identify the perpetrators of the misconduct. Accordingly, the evidential difficulty posed by dismissal for misconduct where a transgression has been committed by a group of employees has given rise to the application of team misconduct.

In this regard the recent Labour Appeal Court case in South African Commercial Catering and Allied Workers Union v Makgopela 2023 44 ILJ 1229 (LAC) has contributed to the elucidation of the notion of team misconduct in the workplace. The learned Savage AJA maintained that the notion of a person’s being guilty by association has no place in our law. It follows that in order for an employer to safely rely on team misconduct a factual basis must be established to infer that an entire group of employees was indivisibly culpable as members of a team for failing to ensure compliance with the employer's rule.

The Labour Appeal Court can be lauded for precisely evaluating the evidence presented and all the relevant factors which exonerated the applicants from the charge of team misconduct. This case note calls for a critical analysis of the impact of shrinkage in the retail sector, the application of the notion of team misconduct, practical methods for securing evidence in team misconduct cases, as well as the cautionary approach adopted by Savage AJA in the Labour Appeal Court judgement.

Structural barriers and the erosion of access to justice in the South African Labour Court and Labour Appeal Court

Carlos J Tchawouo Mbiada — 2025-12-29

This article critically analyses the structural challenges that hinder access to justice in the South African Labour Court and Labour Appeal Court. Eschewing scholarly debates about access to justice, this article adopts a functional approach, construing access to justice as the ability to access courts effectively. Anchored in section 34 of the Constitution, which guarantees the right to a fair and timely adjudication of disputes, the article investigates whether the composition of the bench, the availability of judicial personnel, the physical infrastructure and the administrative capacity of these courts enable meaningful access to justice. Drawing on legislative frameworks, judicial statistics, academic literature and field observations, the article reveals that the chronic shortage of judges, inadequate court infrastructure, limited administrative support and overreliance on acting appointments have led to systemic delays. It argues that these deficiencies amount to a constructive denial of the constitutional right to access the courts. The article concludes with policy recommendations, including legislative reform, the expansion of the Labour Court and the Labour Appeal Court, infrastructural investment and the institutional separation of the Labour Court and the Labour Appeal Court, to ensure their alignment with the constitutional imperative of accessible, fair and expeditious justice.

Clarifying misconceptions and recentring the debate on heritable human genome editing in South Africa: A response to De Vries

Donrich Thaldar — 2025-12-29

This article responds to recent criticisms by Professor Jantina de Vries regarding my research group's position on the legal status of heritable human genome editing (HHGE) in South Africa. De Vries challenges our interpretation of section 57 of the National Health Act (NHA), questions the methodology of our deliberative public engagement study, and speculates about the broader intentions behind our work. In this response, I clarify our interpretation of section 57 using established principles of statutory interpretation and show that the provision prohibits reproductive cloning but does not ban HHGE outright. I address misconceptions surrounding the scope and structure of the provision, and demonstrate why an interpretation that bans HHGE would result in internal inconsistency. I also defend the methodological soundness and peer-reviewed credibility of our public engagement research, and respond to concerns about our broader strategic intent. Finally, I propose a constructive path forward: a context-sensitive regulatory framework for HHGE grounded in constitutional values, public health priorities and rigorous ethical oversight. The article aims to re-centre the debate on substantive legal and governance issues and invites evidence-based academic engagement on the future of HHGE in South Africa. In doing so it contributes to a more principled and legally coherent foundation for regulating advanced biotechnologies in constitutional democracies.

Can AI think like a lawyer? Evaluating generative AI in South African Law

Donrich Thaldar — 2025-12-29

Artificial intelligence (AI) is increasingly being explored as a tool for legal research and reasoning, yet its effectiveness in applying South African legal principles remains under-examined. This study evaluates the performance of five generative AI models - ChatGPT 4o, Claude 3.7 Sonnet, DeepSeek R1, Gemini 2.0 Flash, and Grok3 Beta - across three private law scenarios involving actio de pauperie, negotiorum gestio and actio legis Aquiliae. Each AI model's response was assessed against seven criteria: identification of the correct legal action, accuracy of legal requirements, application to facts, case law citation, relevance of case law, consideration of defences, and clarity of the final answer. The findings reveal that while AI models generally identify and apply South African legal principles correctly, their performance varies significantly. Claude performed the strongest overall, demonstrating structured legal reasoning and engagement with statutory provisions, while ChatGPT followed closely but was undermined by hallucinated case law. DeepSeek provided sound reasoning but occasionally misapplied legal principles. Gemini and Grok were the weakest, with incomplete legal analyses and limited case law engagement. A key limitation across all models was the unreliable retrieval and application of case law, with frequent misinterpretations and fabricated references. Additionally, most models failed to incorporate statutory law unless explicitly prompted. These results underscore the potential of AI as a supplementary legal tool while highlighting its current limitations. Future research should explore AI's competency in broader areas of South African law, including statutory interpretation and constitutional analysis, to better understand its role in legal practice and academia. While AI can assist legal professionals, human oversight remains essential to ensure doctrinal accuracy and case law reliability.

The extension of "Safeguard Measures" in South Africa within and outside the framework of the agreement establishing the African Continental Free Trade Area

Clive Vinti — 2025-12-29

Safeguard measures in the form of either a duty or a quota or both, function as safety valves for countries when a certain industry is suffering or there is a threat of serious injury to the industry due to a sudden, sharp and recent flood of imports of a product into their market. In essence, safeguard measures allow a country to suspend its obligations to other World Trade Organisation (WTO) Members for a specified period, normally three years. The imposition of safeguard measures is uncontroversial, but they are an extraordinary measure as they are not imposed as a response to unfair trade. However, there is no discernible process for the extension of safeguard measures both under the WTO and South African international trade law framework. Yet the extension of safeguard measures has serious financial implications for the affected industry and thus requires a clear investigative process. The aborted litigation in Macsteel Services Centre SA (Pty) Ltd v ITAC (Case No 55450/20) laid out the problems arising out of this gap in the law. The Amended Safeguard Regulations, the WTO Agreement on Safeguards and the Agreement Establishing the African Continental Free Trade Area (AfCFTA) Protocol on Trade in Goods are silent on this issue. In light of the recent commencement of trade by South Africa under the AfCFTA, it has become necessary to explore how this issue is regulated both within and outside the framework of the AfCFTA. Consequently, this article explores the regime for the extension of safeguard measures in South Africa within and outside the framework of the AfCFTA.

The impact of temporary employment services on employees' fundamental rights and fair labour practices: Assessing the effectiveness of Section 198A of the Labour Relations Act 66 of 1995

Phakisho Mello — 2025-12-29

This article examines the regulatory landscape governing temporary employment services (TES) in South Africa, with a focus on job security and the protection of fundamental labour rights. Over the years, the regulation of TES has been problematic, especially with regard to exercising fundamental rights and the right to fair labour practices. Despite legal regulation, TES continue to raise concerns about employees' exploitation and job security. Using a doctrinal and qualitative research methodology, this article explores the vulnerability of TES employees and the complexities inherent in triangular employment relationships. It interrogates constitutional issues, employer accountability and fairness in labour practices in light of landmark decisions like Nape and Assign Services.

While there is a recognised need for labour broking relationships, the research underscores persistent concerns surrounding their impact on workers, particularly those earning below the earnings threshold. The article highlights the difficulties of preserving the fundamental rights of and fair labour practices for TES employees. The complexity of the TES relationship is illustrated by means of case law on unfair dismissals and unfair labour practice disputes. The article concludes by making recommendations to bolster the protection of TES employees and to reinforce equitable labour standards.

Sentencing rape offenders in South Africa: Recent case law Sithole v S; Masango v S; Nyathi v S

Jolandi Le Roux-Bouwer — 2025-12-29

South African criminal courts are inundated with rape trials. In reaction to the high rate of serious crime, the legislature implemented sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997, in terms of which minimum sentences are prescribed for various crimes. Since its passing, this so-called "minimum sentencing legislation" has been the subject of academic debate. The Gauteng high court in Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024), Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) and Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February 2024) has recently considered the sentence of life imprisonment where the rape involved grievous bodily harm, the complainant was 14-years old at the time of the rape. The complainant was raped by an accused and a co-perpetrator. As part of the ongoing academic debate, these recent decisions implore critical academic analysis. This contribution elucidates how the South African courts employ a sentence of life imprisonment as their most powerful weapon in the ongoing fight against the rising rape statistics. The continued high prevalence of rape cases before South African courts still cast a huge shadow over the success of prescribed minimum sentences as a deterrent to rape.

Recent legal developments: Reconceptualising undocumented children's access to basic education in South Africa

Bridget J Machaka — 2025-12-29

The Constitution of the Republic of South Africa, 1996, guarantees the right to basic education to all children. The implementation of this right has been fraught with challenges, however, particularly for undocumented children. The aim of this article is to examine recent legal developments that have reshaped access to basic education for undocumented children in South Africa. Key legislative measures, such as amendments to the Admission Policy for Ordinary Public Schools, 1998 and provisions of the Basic Education Laws Amendment Act 32 of 2024, are analysed. These developments are considered against the backdrop of a recent judicial decision in Centre for Child Law v Minister of Basic Education 2020 1 All SA 711 (ECG) and advocacy efforts. This analysis highlights both progress and setbacks in ensuring equal access to basic education. The article further explores the implications of the delayed implementation of certain legal provisions and the ongoing need for comprehensive policy reform. While commending the steps taken so far, the article reconceptualises access to basic education in light of these changes and emphasises the urgency of addressing the legal and administrative barriers continually faced by undocumented children in South Africa.