Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad https://www.ajol.info/index.php/pelj <p>PELJ/PER publishes contributions relevant to development in the South African constitutional state. This means that most contributions will concern some aspect of constitutionalism or legal development. The fact that the South African constitutional state is the focus, does not limit the content of PELJ/PER to the South African legal system, since development law and constitutionalism are excellent themes for comparative work. Contributions on any aspect or discipline of the law are welcomed, as long as the main themes are addressed.</p><p>The Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad PELJ/PER can now be found at<a title="http://journals.assaf.org.za/per/index" href="http://journals.assaf.org.za/per/index" target="_blank"><strong> http://journals.assaf.org.za/per/index</strong></a></p> Faculty of Law, North-West University en-US Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 1727-3781 <p>This work is licensed under a <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a>.</p><p>Copyright in all material published in PER/PELJ vests in the author, provided that authors grant, by submission of their contributions, permission that their contributions may be shared and adapted without restriction. An author furthermore agrees that the same contribution may not be published elsewhere without the written permission of the editor.</p><p>Anyone gaining access, electronically or otherwise, to a contribution to PER, may quote from such contribution, use the intellectual content thereof, share and adapt it, but subject to the following conditions:</p><ul><li><p>you must give appropriate credit, provide a link and indicate if changes were made; and</p></li><li><p>the copyright of the author(s) may not be infringed in any way.</p></li></ul> The registration of special notarial bonds under the security by means of movable property act and the publicity principle: lessons from developments in Belgium https://www.ajol.info/index.php/pelj/article/view/165919 <p>Many people do not own immovable property to offer as security but do have movable property which can be offered as security for the repayment of a debt. In today's world, where the costs of a motor car can exceed that of a house, the increasing value of movable things makes them popular and appropriate security objects. Under the common law pledge, delivery of the movable property from the pledgor (the debtor) to the pledgee (the creditor) has to take place in order for the pledgee to acquire a real security right in the property. Delivery of the property is aimed at ensuring compliance with the publicity principle. The principle of publicity entails that the existence of a real security must be known to the public. With the aim of promoting commerce, certain countries have taken the initiative in reforming their laws on pledge to allow the debtor to retain possession of the movable property that serves as security. Furthermore, technology has advanced to a level where national registration systems which can be accessed easily and at minimal cost can be established. The South African legislature enacted the<em> Security by Means of Movable Property Act</em> 57 of 1993 which makes provision for a pledge without possession. This Act deemed a duly registered notarial bond over specified movable property to have been delivered as if delivery had in fact taken place, thereby substituting the common law delivery requirement with registration in the Deeds Office. On 30 May 2013 the Belgian House of Representatives adopted a Belgian Pledge Act which allows for a non-possessory pledge on movable property subject to registration in a newly created public register called the Electronic Pledge Register. This article therefore examines the efficacy of the registration system of special notarial bonds in South African law and whether this form of registration complies with the publicity principle looking at the developments of a computerised registration system taking place in Belgium.</p><p><strong>Keywords:</strong> Delivery; electronic pledge register; movable property; pledge; real security right; possession; publicity principle; registration; special notarial bonds</p> Lefa S. Ntsoane Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Pathological corporate governance deficiencies in South Africa's state-owned companies: a critical reflection https://www.ajol.info/index.php/pelj/article/view/165920 <p>Globally, states use state-owned companies (SOCs) or public corporations to provide public goods, limit private and foreign control of the domestic economy, generate public funds for the fiscus, increase service delivery and encourage economic development and industrialisation. Particularly given its unique socio-political and economic dynamics, a country such as South Africa clearly needs this type of strategic enterprise. Yet, that does not mean that everything at our SOCs is as it should be. The beleaguered South African Broadcasting Corporation (SABC) has recently seen the resignation of board members, shareholder interference in its operational affairs, and a high turnover of chief accounting officers and other executive management members. Due to non-performance, it has also received several cash injections from its shareholder to enable it to continue to deliver its services. In addition, the shareholder minister took it upon herself to amend the SABC's memorandum of incorporation, conferring upon herself the authority to appoint, suspend or even dismiss key executive members. South African Airways (SAA), in turn, has had seven CEOs in less than four years, has had to be bailed out at a cost of R550 million, and has in addition been granted a R5 billion guarantee by the shareholder for a restructuring exercise. Other SOCs such as Eskom, the Post Office and Telkom have also experienced high board and executive management turnover, perennial underperformance necessitating regular bailouts, and challenges regarding the division of power between their boards and the various shareholder ministers. Another issue that seems to plague South Africa's SOCs is the appointment of board members and executive officials with questionable qualifications. By critically examining the corporate governance challenges besetting the SABC, SAA and Eskom in particular, this article seeks to explore the root causes of the corporate governance deficiencies of SOCs, and how their corporate governance can be enhanced. It is concluded that the challenges faced by the country's SOCs are twofold: firstly, the SOCs boards' lack of appreciation of the cardinal corporate governance rules, and secondly, the role of government as a single or dominant shareholder, which results in substantial political interference in the running of the SOCs. This dual problem requires a dual solution. To arrest the problem of poor corporate governance in SOCs, government as the shareholder should firstly appoint fit and proper directors, having followed a sound due-diligence process. Once it has established such properly skilled and competent boards, however, government should adopt an arm's-length approach to the affairs of the SOCs as a way of insulating these corporations from political interference.</p><p><strong>Keywords:</strong> State-owned companies; corporate governance; deficiencies; South Africa; SAA; SABC; Eskom</p> Tebello Thabane Elizabeth Snyman van Deventer Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Reviewing the suitability of affirmative action and the inherent requirements of the job as grounds of justification to equal pay claims in terms of the <i>Employment Equity Act</i> 55 of 1998 https://www.ajol.info/index.php/pelj/article/view/165921 <p>The<em> Employment Equity Act</em> 55 of 1998 ("EEA") has been amended to include a specific provision dealing with equal pay claims in the form of section 6(4). Section 6(4) of the EEA prohibits unfair discrimination in terms and conditions of employment between employees performing the same or substantially the same work or work of equal value. The Minister of Labour has issued Regulations and a Code to assist with the implementation of the principle of equal pay. Both the Regulations and the Code set out the criteria for assessing work of equal value as well as the grounds of justification to a claim of equal pay for work of equal value (factors justifying differentiation in terms and conditions of employment). The EEA refers to two grounds of justification in respect of unfair discrimination claims, namely affirmative action and the inherent requirements of the job. There is support for the view that these grounds of justification are not suitable to equal pay claims. There is a contrary view that these grounds of justification can apply to equal pay claims. The Labour Courts have not had the opportunity to analyse these grounds of justification in the context of equal pay claims. It is thus necessary to analyse these grounds of justification in order to ascertain whether they provide justifications proper to equal pay claims.</p><p>The purpose of this article is to analyse the grounds of justification of pay discrimination as contained in South African law, the Conventions and Materials of the International Labour Organisation and the equal pay laws of the United Kingdom. Lastly, an analysis will be undertaken to determine whether affirmative action and the inherent requirements of the job provide justifications proper to equal pay claims.</p><p><strong>Keywords:</strong> Equal pay;<em> Employment Equity Act</em>; <em>Equality Act</em>; International Labour Organisation; Equal Pay Guide; <em>Equal Remuneration Convention</em>; grounds of justification to equal pay; affirmative action; inherent requirements of the job</p> Shamier Ebrahim Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. The national credit act's remedies for reckless credit in the mortgage context https://www.ajol.info/index.php/pelj/article/view/165922 <p>The <em>National Credit Act</em> 34 of 2005 prohibits the granting of reckless credit and also provides for certain remedies that courts can grant to consumers who have fallen victim to reckless lending practices. Depending on the circumstances, these remedies are the partial or full setting aside of the consumer's rights and obligations under the agreement; the temporary suspension of the effect of the agreement; and the restructuring of the consumer's obligations. This article investigates these remedies with a focus on the effect that they would have on a credit provider under a mortgage agreement. The argument is made that the contractual and security rights of credit providers amount to "property" for the purposes of section 25(1) of the <em>Constitution of the Republic of |South Africa</em>, 1996 (the property clause) and that, to some degree or another, each of these remedies involves a "deprivation" (limitation or modification) of the creditor provider's rights (property). The consequence is that, when one of these remedies is granted to a consumer, the court must tailor the remedy in such a way that the effect on the credit provider is not "arbitrary" as meant in the property clause. Therefore, the proposal is that there must be a sufficient relationship between the purpose of the remedy (to discourage reckless lending and to rectify the damage caused) and the effects thereof on the credit provider. In general, the remedy should not go further than is necessary to rectify the prejudice suffered by the consumer due to the credit provider's conduct. The formulation of the remedy should accommodate considerations such as whether and to what extent either or both parties have already performed under the agreement, and it should accordingly ensure that the consumer will not be unjustifiably enriched. The remedy should also account for the effect that it would have if the consumer is permitted to keep the property that was subject to the reckless credit agreement. The article furthermore raises doubts regarding the recent high court judgment in <em>ABSA v De Beer</em> 2016 3 SA 432 (GP), where all the consumer's rights and obligations under a mortgage agreement were set aside due to the credit provider's reckless conduct. Remedies like this have serious consequences and therefore it is imperative that courts carefully investigate all the effects that the order would have, so that a just and reasonable outcome is achieved. This article accordingly aims to provide some guidance with reference to the principles of constitutional property law.</p><p><strong>Keywords:</strong> National Credit Act; reckless credit; remedies; mortgage; constitutional property law</p> Reghard Brits Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. In search of the perceived quality and impact of accredited South African law journals: exploring the possibility of a ranking system. A baseline study: 2009 – 2014 https://www.ajol.info/index.php/pelj/article/view/165923 <p>The <em>DHET Research Output Policy</em> (2015) indicates that there has been a change in the government’s approach to research funding. Previously all research published in any accredited journal was rewarded equally. A decision has been taken, however, that a shift will be made towards rewarding better quality and higher impact peer-review research. Additional mechanisms such as biometric/bibliometric data, including citations, assessments by discipline-specific panels of experts and/or post-publication reviews may be used to determine the quality and impact of publications. The policy notes that the DHET may distinguish between "high" and "low" impact journals after proper consultation.</p><p>This article highlights the need for consultation by the legal fraternity with the DHET about the implementation of these possible mechanisms in the light of the special considerations applicable to the evaluation of law journals: most journals publish mainly local legal content, there is a limited number of active legal academics, the nature of legal research is not empirical, and a premium is placed on the writing of books.</p><p>The research evaluates the available data between 2009 and 2014 in an attempt to assess if it would be appropriate to introduce a legal journal ranking system in South Africa. The article discusses direct and indirect forms of quality evaluation to inform possible ranking systems. This includes the data from the ASSAf expert panel evaluation of law journals in 2014 and other bibliometric data based on whether the journal is featured in international accredited lists, the size of its print-run, author prominence, rejection-rate, usage studies, and evaluations based on citations. An additional ranking system is considered, based on the five best outputs submitted to the National Research Foundation by applicants applying for rating.</p><p>The article concludes that a law journal ranking system would be inappropriate for South Africa. None of the systems meet the minimum requirements for a trustworthy ranking of South African law journals, as the data available are insufficient, non-verifiable and not based on objective quality-sensitive criteria. Consultation with the DHET is essential and urgent to avoid the implementation of inappropriate measures of quality and impact assessment.</p><p><strong>Keywords:</strong> Ranking; law journals; Department of Higher Education; bibliometric data; citations; quality</p> Marita Carnelley Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Maintaining the ecological flows of estuaries: a critical reflection on the application and interpretation of the relevant legal framework through the lens of the Klein River Estuary https://www.ajol.info/index.php/pelj/article/view/165924 <p>South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country's estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is contingent, however, upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in<em> Abbott v Overstrand Municipality</em> 2016 JOL 35969 (SCA) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary's understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.</p><p><strong>Keywords:</strong> Estuaries; ecological flows; coastal management; estuarine management; legal frameworks; constitutional executive authority; local environmental governance</p> Alexander Paterson Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Book Review: <i>Laws against Strikes – The South African Experience in an International and Comparative Perspective</i> https://www.ajol.info/index.php/pelj/article/view/165925 <p><strong>Book Title: </strong><em>Laws against Strikes – The South African Experience in an International and Comparative Perspective</em></p><p><strong>Book Authors:</strong> Bob Hepple, Rochelle le Roux &amp; Silvana Sciarra (Eds.)</p><p>(Juta Kenwyn 2016) ISBN: 9788891724151</p> Michael Laubscher Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Book Review: <i>Aboriginal Customary Law: A Source of Common Law Title to Land</i> https://www.ajol.info/index.php/pelj/article/view/165926 <p><strong>Book Title: </strong><em>Aboriginal Customary Law: A Source of Common Law Title to Land</em></p><p><strong>Book Author:</strong> U Secher</p><p>(2014 Hart Publishing Oxford and Portland Oregon) ISBN 978-1-84946-553-3</p> Elmien W.J. du Plessis Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Book Review: <i>Untitled: Securing Land Tenure in Urban and Rural South Africa</i> https://www.ajol.info/index.php/pelj/article/view/165927 <p><strong>Book Title: </strong><em>Untitled: Securing Land Tenure in Urban and Rural South Africa</em></p><p><strong>Book Authors:</strong> Hornby D, Kingwill R, Royston L &amp; Cousins B (Eds.)</p><p>(2017 University of KwaZulu-Natal Press) ISBN: 1869143507</p> Elmien W.J. du Plessis Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Book Review: <i>Corruption and Human Rights Law in Africa</i> https://www.ajol.info/index.php/pelj/article/view/165928 <p><strong>Book Title:</strong> <em>Corruption and Human Rights Law in Africa</em></p><p><strong>Book Author: </strong>Olaniyan K</p><p>(2016 Hart Publishing, Oxford) ISBN 978-1-84946-637-0</p> Willard T. Mugadza Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. Book Review: <i>The BRICS-Lawyers' Guide to Global Cooperation</i> https://www.ajol.info/index.php/pelj/article/view/165929 <p><strong>Book Review:</strong> <em>The BRICS-Lawyers' Guide to Global Cooperation</em></p><p><strong>Book Authors: </strong>Neuwirth RJ, Svetlicinii A &amp; De Castro Halis D (Eds.)</p><p>(Cambridge University Press 2017) ISBN 978-1-10823-610-2</p> Franziska Sucker Copyright (c) 2018-01-31 2018-01-31 21 1 10.4314/pelj.v21i1. <i>Le Roux</i> v <i>Dey</i> and children's rights approaches to judging https://www.ajol.info/index.php/pelj/article/view/168032 <p>The South African jurisprudence on the rights of children is vibrant and generally progressive, and is supported by an enabling constitutional and statutory framework. The majority decision in <em>Le Roux </em>v<em> Dey</em> 2011 3 SA 274 (CC), however, ignores the rights of children, and this is in stark contrast to some of the minority judgments in the same case. This contrast is surprising, considering that all of the judges applied the same legal framework. With reference to an emerging interest in defining children's rights approaches to judging, this article critically analyses the majority and minority judgments, and establishes their vulnerabilities and strengths as children's rights judgments. In the process, suggestions are made in relation to defining a children's rights approach to judging.</p><p><strong>Keywords:</strong> Children's rights; best interests of the child; children's rights approaches to judging</p> Meda Couzens Copyright (c) 2018-03-09 2018-03-09 21 1 10.4314/pelj.v21i1. Human rights and the new sustainable mechanism of the Paris Agreement: a new opportunity to promote climate justice https://www.ajol.info/index.php/pelj/article/view/168033 <p>In the light of the new era of climate action under the <em>Paris Agreement</em> (PA) and the rights and justice issues raised by climate change-related policies and measures, this paper discusses the integration of a human rights component within the Sustainable Development Mechanism (SDM) of the PA. Established in article 6.4, the SDM is essentially a new mitigation mechanism available to all Parties aimed at helping them to achieve and increase their mitigation actions, while fostering sustainable development. Looking back at the experience of the Clean Development Mechanism (CDM) of the <em>Kyoto Protocol</em>, which bears great resemblance to the SDM, as well as to the human rights concerns raised during its implementation, the integration of human rights considerations into the SDM and its governing rules seems to be necessary to prevent negative outcomes and human rights harms when implemented. The adoption of such rules, consistent with international human rights, could provide an opportunity for State Parties to operationalise the language included in the PA and tackle the climate change challenge, while ensuring respect for human rights.</p><p><strong>Keywords:</strong> Climate change; <em>Paris Agreement</em>; Human Rights; Clean Development Mechanism (CDM); Sustainable Development Mechanism (SDM)</p> Paola Villavicencio Calzadilla Copyright (c) 2018-03-09 2018-03-09 21 1 10.4314/pelj.v21i1. Pericles should learn to fix a leaky pipe – why trial advocacy should become part of the LLB curriculum (Part 1) https://www.ajol.info/index.php/pelj/article/view/168035 <p>It is a sad fact that at most university law schools in South Africa, a student can graduate without ever having set foot in a courtroom, and without ever having spoken to, or on behalf of, a person in need of advice or counsel. The past several years have witnessed a swelling chorus of complaints that the current LLB curriculum produces law graduates who were "out of their depth" in practice. My purpose is to make a case for the inclusion in the LLB curriculum of a course in trial advocacy. This endeavour of necessity invokes the broader debate over the educational objectives of a university law school – a debate memorably framed by William Twining as the two polar images of "Pericles and the plumber". My thesis is that the education of practising lawyers should be the primary mission of the university law school. The first part of this contribution is a response to those legal academics who hold that the role of the law school is to educate law students in the theories and substance of the law; that it is not to function as a trade school or a nursery school for legal practice. With reference to the development of legal education in the United States, I argue that the "education/training" dichotomy has been exposed as a red herring. This so-called antithesis is false, because it assumes that a vocational approach is necessarily incompatible with such values as free inquiry, intellectual rigour, independence of thought, and breadth of perspective. The modern American law school has shown that such so-called incompatibility is the product of intellectual snobbery and devoid of any substance. It is also often said that the <em>raison d'être</em> of a university legal education is to develop in the law student the ability "to think like a lawyer". However, what legal academics usually mean by "thinking like a lawyer" is the development of a limited subset of the skills that are of crucial importance in practising law: one fundamental cognitive skill – analysis – and one fundamental applied skill – legal research. We are not preparing our students for other, equally crucial lawyering tasks – negotiating, client counselling, witness interviewing and trial advocacy. Thinking like a lawyer is a much richer and more intricate process than merely collecting and manipulating doctrine. We cannot say that we are fulfilling our goal to teach students to "think like lawyers", because the complete lawyer "thinks" about doctrine<em> and</em> about trial strategy <em>and</em> about negotiation<em> and</em> about counselling. We cannot teach students to "think like lawyers" without simultaneously teaching them what lawyers do. An LLB curriculum that only produces graduates who can "think like lawyers" in the narrow sense ill-serves them, the profession and the public. If the profession is to improve the quality of the services it provides to the public, it is necessary for the law schools to recognise that their students must receive the skills needed to put into practice the knowledge and analytical abilities they learn in the substantive courses. We have an obligation to balance the LLB curriculum with courses in professional competence, including trial advocacy – courses that expose our students to what actually occurs in lawyer-client relationships and in courtrooms. The skills our law students would acquire in these courses are essential to graduating minimally-competent lawyers whom we can hand over to practice to complete their training. The university law school must help students form the habits and skills that will carry over to a lifetime of practice. Nothing could be more absurd than to neglect in education those practical matters that are necessary for a person's future calling.</p><p><strong>Keywords:</strong> Trial advocacy; legal skills; legal education; LLB curriculum</p> Willem H. Gravett Copyright (c) 2018-03-09 2018-03-09 21 1 10.4314/pelj.v21i1. Pericles should learn to fix a leaky pipe – why trial advocacy should become part of the LLB curriculum (Part 2) https://www.ajol.info/index.php/pelj/article/view/168036 <p>The inescapable reality is that most law school graduates are headed for professional life. This means that law schools have some accountability for the competence of their graduates, and thus an educational responsibility to offer their students instruction in the basic skills of legal representation. The most obvious and direct gain from the university law school offering more training in the generally neglected applied legal skills of trial advocacy, interviewing, counselling, drafting and negotiation, is the benefit to students in helping them bridge the gap between traditional basic legal education and practice. Although I strongly believe that the LLB curriculum should also include courses in legal writing, negotiation, client counselling, and witness interviewing, I emphasise adding a clinical course in trial advocacy to the LLB curriculum for a number of specific reasons. Trial advocacy consists of a set of skills that transcends the walls of the courtroom. It is difficult to conceive of a practising lawyer who does not, in some way and at some time, utilise the skills of advocacy - fact analysis, legal integration and persuasive speech. Even the technical "forensic skills" of trial advocacy, such as courtroom etiquette and demeanour, learning how to phrase a question to elicit a favourable response, and making an effective oral presentation, transfer readily to a wide range of applications within both the legal and business worlds. In addition to learning how to prepare and present a trial from the opening speech through to the closing argument, in a trial advocacy course students would also learn to apply procedural, substantive and ethical rules of law to prove or defend a cause of action. Moreover, if university law schools fail to contribute to establishing a substantial body of competent trial lawyers, our failure will ultimately take its toll on our system of justice. The quality of courtroom advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the justice system, and, ultimately, the quality of justice. Also, traditional law school teaching in legal ethics is necessarily abstract and a-contextual. It can be effective at providing instruction in the law of lawyering, but it is seldom as productive when it comes to examining more subtle questions. The university trial advocacy course is the ideal forum in which to raise ambiguous and textured ethical issues. Ethics problems cannot be avoided or rationalised, because the student trial lawyer must always make a personal decision. In the ethics classroom, it is all too easy to say what lawyers should do. In the simulated courtroom, students have to show what they have chosen to do. I argue that a university trial advocacy course should not be antithetical to the university mission. Thus, students should be given the opportunity to learn not only "how" to conduct a trial, but also "why" their newly acquired skills should be used in a certain way, and "what" effect the use of that skill could have. Through properly constructed case files, assignments and class discussions, students should be able to reflect on issues that go beyond the mere mastery of forensic skills. A university course in trial advocacy must be infused with instruction in evidence, legal ethics, procedure, litigation planning, the encouragement of critical thinking about the litigation and trial process, and the lawyer's role in the adversary system. I also suggest, in concrete terms and by way of example, the outlines of both the theoretical and practical components of a university trial advocacy course that would result in a highly practical course of solid academic content.</p><p><strong>Keywords:</strong> Trial advocacy; legal skills; legal education; LLB curriculum.</p> Willem H. Gravett Copyright (c) 2018-03-09 2018-03-09 21 1 10.4314/pelj.v21i1. Facing the challenge of improving the legal writing skills of educationally disadvantaged law students in a South African Law School https://www.ajol.info/index.php/pelj/article/view/168037 <p>Many first-year students in the School of Law at the University of KwaZulu-Natal, Howard College, who have been disadvantaged by a poor primary and secondary education, exhibit poor legal writing skills. Over a period of four years, in order to address this urgent need for legal writing instruction, the School of Law introduced two successive legal writing interventions. The first intervention was the Concise Writing Programme, followed by the Integrated Skills in Context Programme. The Concise Writing Programme focused on English writing skills and grammar in the hope that first-year law students would be able to transfer these generic writing skills to the more specific legal discourse within which they were learning to operate. The Law School reviewed the success of this initial programme and found that students who took part in the programme not only lacked the motivation to learn generic English writing skills, but that they also did not find it easy to transfer these skills to the more specific legal writing environment. The Law School then implemented a second legal writing intervention – The Integrated Skills in Context Programme. This programme acknowledged the fact that legal writing has a multi-faceted nature, encompassing legal analysis and application, as well as logical sequencing and argument, all of which could not be taught in a vacuum, particularly when most of the student base was largely unfamiliar with any form of legal discourse and many had English as a second language. This paper recognises that there is no silver bullet to improving the legal writing skills of these students. The reality is that it will take hard work as well as financial incentives to make a difference to these students' legal writing skills. Our students need intensive one-on-one attention by qualified academics, and this means that those doing the instruction must be recognised and adequately compensated.</p><p><strong>Keywords:</strong> Legal writing skills; South African Law School; generic English writing skills; academic disadvantage; legal discourse; legal analysis and application</p> Angela Diane Crocker Copyright (c) 2018-03-09 2018-03-09 21 1 10.4314/pelj.v21i1. An analysis of the regulatory environment governing hearsay electronic evidence in South Africa: Suggestions for reform – Part One https://www.ajol.info/index.php/pelj/article/view/183311 <p>The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa – with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence. Technology has become an indispensable part of modern life. In particular, the Internet has facilitated new forms of business enterprise, and shifted basic communication norms. From a legal perspective, technology has presented several novel challenges for courts and legal practitioners to deal with – one of these key challenges relates to electronic evidence and in particular the application of the hearsay rules to the digital environment. The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence, and certain academic analysis has revealed inefficiency in the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence.<br />With the pervasive and burgeoning nature of technology, and with the Internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in future, and hearsay electronic evidence in particular will play an increasingly important role in years to come. Consequently, part one of this article will consider the key definitional concept in relation to electronic evidence – data messages - and examine whether the definition should be revised. In addition, part one of this article will answer two further critical questions posed by the South African Law Reform Commission in relation to data messages and hearsay evidence, namely: should a data message constitute hearsay? And, how should one distinguish between documentary evidence and real evidence in the context of data messages?</p><p><br /><strong>Keywords</strong>: Electronic evidence; data messages; ECT Act; law of evidence; South African Law Reform Commission; technology and law.</p> Lee Swales Copyright (c) 2019-02-11 2019-02-11 21 1 10.4314/pelj.v21i1. An analysis of the regulatory environment governing hearsay electronic evidence in South Africa: Suggestions for reform – Part Two https://www.ajol.info/index.php/pelj/article/view/183312 <p>The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission. Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person. Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the Electronic Communications and Transactions Act 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement. Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions.</p><p><strong>Keywords</strong>: Electronic evidence; data messages; ECT Act; law of evidence; South African Law Reform Commission; technology and law.</p> Lee Swales Copyright (c) 2019-02-11 2019-02-11 21 1 10.4314/pelj.v21i1. Justificatory theories for intellectual property viewed through the constitutional prism https://www.ajol.info/index.php/pelj/article/view/183316 <p class="Default">In order to determine the extent to which intellectual property rights should enjoy protection under the constitutional property clause, some of the classical and newer justificatory theories for property may be employed, including the labour theory, reward theory, incentive theory, theory of natural law, spiritual theories, personality theory, economic theory, and theory of natural monopoly. These theories must be applied in line with the <em>Constitution of the Republic of South Africa</em>, 1996, keeping in mind that other fundamental rights must be balanced with the protection afforded to intellectual property in order to ensure its continued production. It is also important that intellectual property statutes be developed to promote a thriving intellectual commons.</p><p class="Default"><strong>Keywords</strong>: Constitutional property; intellectual property; justificatory theories; labour theory; reward theory; incentive theory; theory of natural law; excludability; spiritual theories; personality theory; economic theory; theory of natural monopoly; intellectual commons; public domain.</p> Mikhalien du Bois Copyright (c) 2019-02-11 2019-02-11 21 1 10.4314/pelj.v21i1. The direct applicability of SADC Community Law in South Africa and Zimbabwe: A call for supranationality and the uniform application of SADC community law https://www.ajol.info/index.php/pelj/article/view/183323 <p>The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. This was due to the existence of various approaches to the reception of community law into domestic law. The tension between community law and domestic law, international law and domestic law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law, but there is no guidance when it comes to community law and national law. This paper will explore how the SADC Community law can be applied uniformly by South Africa, Zimbabwe and all other SADC member states. This will be done by looking at decided cases with specific reference to South Africa and Zimbabwe. In order to establish the best practices in other jurisdictions, reference will be made to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by advocating the adoption of a revised Protocol on the SADC Tribunal in order to clarify the nature of the relationship between the SADC Community law and the domestic laws of SADC member states.</p><p><br /><strong>Keywords:</strong> SADC Tribunal; SADC Community Law; direct applicability; supranationality.<br /><br /></p> Retselisitsoe Phooko Copyright (c) 2019-02-11 2019-02-11 21 1 10.4314/pelj.v21i1. The testimonial competence of children: A need for law reform in South Africa https://www.ajol.info/index.php/pelj/article/view/183330 <p>Modern-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. In South Africa, as in many other countries, a child is, however, permitted to testify in a criminal court only once the presiding officer is satisfied that the child is competent to be a witness. The competency test, though, presents a critical initial challenge for child witnesses, as it focuses on their ability to answer questions about the concepts of truth and lies. These inquiries can be intimidating and confusing, especially to younger children, and may result in children who would otherwise have been capable of giving evidence being prevented from giving their testimony. Various legal and psychological fraternities have accordingly called for the abolition or amendment of the truth-lie competency requirement. Recent psychological research about the potential of a child to lie has once again raised fundamental questions about the competency inquiry, suggesting that an assessment of children's understanding of truth and lies has no bearing on whether the child will in fact provide truthful evidence in court. These empirical findings precipitated the amendment of competency rules by various countries such as the United Kingdom and Canada. The findings likewise raise serious questions and or doubt about the suitability of the South African competency requirements. The purpose of this paper is to review the current South African position with a view to proposing suggestions for meaningful legal reform.</p><p><br /><strong>Keywords</strong>: Testimonial competence of children; sections 162, 164 and 170A of the Criminal Procedure Act 51 of 1977; intermediary; truth-lie test.</p> Mildred Bekink Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. The Testamentary Trust: Is it a Trust or a Will? <i>Hanekom v Voigt</i> 2016 1 SA 416 (WCC) https://www.ajol.info/index.php/pelj/article/view/183337 <p>The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the Hanekom matter has touched a particular nerve in the will versus trust debate as far as the trust mortis causa is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the Oudekraal principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the Hanekom case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed, and is a true and realistic reflection of the nature of the institution.</p><p><strong>Keywords</strong>: Amendment of trust deed; appointment of trustees; freedom of testation; Oudekraal principle; succession; testamentary trust; trust mortis causa</p> Eben Nel Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. South Africans offering foreign military assistance abroad: How real is the risk of domestic prosecution? https://www.ajol.info/index.php/pelj/article/view/183339 <p>This article discusses the efficacy of the existing Regulation of Foreign Military Assistance Act 15 of 1998, and the proposed Prohibition of Mercenary Activities and Regulation of Certain Activities in the Country of Armed Conflict Act 27 of 2006, in regulating the private security industry and prosecuting those in contravention of the legislation. It discusses the motivations behind recent attempts to deny the citizenship of South African nationals who had taken up employment abroad in the private security industry. The article gives some guidance regarding the likelihood of prosecution for the new school of South African fighters taking up arms for foreign causes like ISIS, the IDF, and Nigeria.</p><p><br /><strong>Keywords</strong>: Foreign military assistance; private security; domestic prosecution; ISIS.</p> Shannon Joy Bosch Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. The legal nature of the embryo: Legal subject or legal object? https://www.ajol.info/index.php/pelj/article/view/183341 <p>This contribution addresses the question regarding the legal nature of a cryopreserved embryo. Such preservation is a relatively modern development in the medical field. Neither Tennessee (USA) law nor European law provides an acceptable explanation regarding its legal nature. It is argued herein that this is mainly due to the fact that rather unscientific language is applied. It is suggested that the using of concise legal terminology may contribute to a better understanding. The terms legal subject and object and legal subjectivity are well-known and have definite legal content. By drawing an analogy between the legal status of an infant and such embryos, the conclusion is reached that embryos are not legal subjects sui iuris but indeed share the legal subjectivity of their parents.</p><p><strong>Keywords</strong>: Embryo; legal subjectivity; legal subject; legal object; cryopreserved ova; person; property; legal status; foetus. </p> Robbie Robinson Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Intermediaries and the international obligation to Protect child witnesses in South Africa https://www.ajol.info/index.php/pelj/article/view/183343 <p>This contribution examines the protection of child witnesses in criminal proceedings under international and regional laws. This consideration is made against the background that the Constitution of the Republic of South Africa, 1996 proclaims in section 39(1)(b) that in interpreting the Bill of Rights and any legislation a court or tribunal must consider international law. The United Nations Convention on the Rights of the Child (1989), the African Charter on the Rights and Welfare of the Child (1990) and the United Nations Guidelines on Justice for Child Victims and Witnesses to Crime (2005) do not make specific reference to child witnesses and how they should be treated. However, it is argued that the guiding principles enshrined therein provide for the protection of child witnesses, particularly the best interests of the child and the right to participate. In addition, the article enumerates and explains the rights of child witnesses as provided for in the UN Guidelines. International law will be discussed first, and then South African law, to establish if the international obligation to protect child witnesses is being adhered to.</p><p><strong>Keywords</strong>: Child witnesses; criminal proceedings; intermediary</p> R. Fambasayi R. Koraan Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Pre-Agreement Assessment as a Responsible Lending Tool in South-Africa, the EU and Belgium: Part 1 https://www.ajol.info/index.php/pelj/article/view/183344 <p>Responsible lending has become a very pertinent issue on the agenda of credit regulators across the globe who seek to combat the causes of consumer over-indebtedness. In this context the use of "pre-agreement assessment" as a tool to filter out those instances where, based on a consumer's creditworthiness or ability to repay, credit should not be granted to such a consumer, is a feature common to the lending regimes of various jurisdictions. This contribution consists of two parts: Part 1 provides a critical discussion of the reckless credit provisions of the National Credit Act 34 of 2005. Part 2 details the responsible lending measures contained in the EU Consumer Credit Directive and the EU Mortgage Credit Directive and provides an appraisal of the responsible lending measures introduced by Belgium, being a jurisdiction that has always been very pro-active in the context of consumer credit protection.</p><p> </p><p><strong>Keywords</strong>: Responsible lending, reckless credit granting, pre-agreement assessment, affordability, creditworthiness</p> Corlia M van Heerden Reinhard Steennot Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Pre-Agreement Assessment as a Responsible Lending Tool in South-Africa, the EU and Belgium: Part 2 https://www.ajol.info/index.php/pelj/article/view/183345 <p>Responsible lending has become a very pertinent issue on the agenda of credit regulators across the globe who seek to combat the causes of consumer over-indebtedness. In this context the use of "pre-agreement assessment" as a tool to filter out those instances where, based on a consumer's creditworthiness or ability to repay, credit should not be granted to such a consumer, is a feature common to the lending regimes of various jurisdictions. This contribution consists of two parts: Part 1 provides a critical discussion of the reckless credit provisions of the National Credit Act 34 of 2005. Part 2 details the responsible lending measures contained in the EU Consumer Credit Directive and the EU Mortgage Credit Directive and provides an appraisal of the responsible lending measures introduced by Belgium, being a jurisdiction that has always been very pro-active in the context of consumer credit protection.</p><p><strong>Keywords</strong>: Responsible lending, reckless credit granting, pre-agreement assessment, affordability, creditworthiness.</p> Corlia M van Heerden Reinhard Steennot Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Inheritance rights for posthumously procreated children: A growing challenge for the law https://www.ajol.info/index.php/pelj/article/view/183346 <p>Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.</p><p><br /><strong>Keywords</strong>:Cryogenics; post-mortem conception; posthumous procreation; children's inheritance; nasciturus doctrine; intestate succession; posthumous child; in vitro fertilisation.</p> Justin d'Almaine Frederick Noel Zaal Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Does Albinism Fit Within the Legal Definition of Disability in the Employment Context? A Comparative Analysis of the Judicial Interpretation of Disability under the SA and the US Non-Discrimination Laws https://www.ajol.info/index.php/pelj/article/view/183348 <p>South Africans with albinism are among the most marginalised and vulnerable citizens yet very little attention is paid to protecting them from human rights violations. There have been several calls by people with albinism in South Africa to be classified as disabled. The question of whether albinism is classified as a disability or not is a controversial legal one, which does not always have a straightforward answer. A literature search indicates that in South Africa no comprehensive and analytical study has been carried out on the subject of albinism and disability, whereas this has already been addressed in court cases in the United States of America. This paper anticipates addressing this gap within a legal perspective. The objective of such an analysis is to understand the construction of disability under the Employment Equity Act in order to shed light on whether people with albinism qualify for the protection, which is afforded to people with disabilities in the work place. Foreign case law and international human rights law could shed new light on this longstanding grey area or stimulate the development of novel legal analytical strategies. This paper reviews the nature of disability claims in the workplace on grounds of albinism in the United States context, including factors contributing to disability claims; assessing the degree of impairment and the guidelines in assessing albinism related disability. Prior to this discussion, the paper explores the current working definition of disability in South Africa, which stems from the IMATU case, which relied significantly on a foreign precedent; the Sutton v United Airlines case as there was no indigenous precedent in South Africa to fall back on. It will be argued that the Sutton v United Airlines decision, referred to in the IMATU case is based on an insufficiently inclusive definition of disability. Specific cases that relied on the Sutton v United Airlines decision as a persuasive authority in determining whether albinism is a disability or not, will also be examined. While the United States of America has struck down the decision in the Sutton v United Airlines and amended its legislation to include a broader and less restrictive definition of disability, which includes present as well as past conditions and a subjective component of perceived disability, the South African definition of disability still remains narrow and less inclusive. The United States of America's amended legislation does not contain an exhaustive definition of disability; rather, an equality-based framework was chosen which considers changing biomedical, social and technological developments. This new definition highlights the fact that the emphasis must be on whether discrimination occurred rather than adherence to a strict definition of disability. Such a framework of disability includes a socio-political aspect, which places emphasis on human dignity, respect and the right to equality. Against this background, the comparative analysis raises specific issues that deserve attention, in particular that the unique disadvantages and negative stereotyping suffered by people with albinism should be recognised as unlawful conduct against people with disabilities as defined by legislation. Put differently, the discussion calls for a broader approach to viewing disability, which includes both a social and a human rights perspective. In taking the position that albinism related discrimination is socially constructed, the article also explores the mandate of the Convention on the Rights of Persons with Disabilities in as far as it relates to the social construction of disability. The paper argues that the Convention on the Rights of Persons with Disabilities affords a direction for an analysis of the discrimination faced by persons with albinism.<br /><strong></strong></p><p><strong>Keywords</strong>: Albinism; disability; employment; the right to equality; Employment Equity Act, Americans with Disability Amendment Act; Convention on the Rights of Persons with Disabilities.</p> Maureen Mswela Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Formal Regulation of Third Party Litigation Funding Agreements? A South African Perspective https://www.ajol.info/index.php/pelj/article/view/183350 <p>In South Africa third party litigation funding agreement as a tool that provides access to justice is not legislated with regard to non-lawyers. This article is based on research conducted to determine whether regulating this type of agreement would facilitate in fostering the policy that favours access to justice. A brief comparative study showed that English law permits third party litigation funding agreements in the Courts and Legal Services Act 1990. However, unlike in South African law, English law also has a body that regulates the conclusion of third party litigation funding agreements. The Association of Litigation Funders introduced a voluntary Code of Conduct for Litigation Funders in 2011 and an updated one in 2016, which regulates the conclusion of third party litigation funding agreements. The Code of Conduct protects the litigant against abuse by the funder and the funder against non-compliance by the litigant. Despite being a "self-regulatory" legislative initiative that governs most of the funding agreements in England, this Code does not bind non-members of the Association. In South Africa there is no such voluntary regulation of third party litigation funding agreements. Consequently, litigants may be prejudiced by the litigation funder in instances where a funder receives a disproportionate percentage of the capital award. The study on which this article draws investigated whether there is a need for an effective legislative response that regulates third party litigation funding agreements in South Africa. It was found that there is a need for formal regulation with regard to third party litigation funding agreements because there are no clear guidelines on the conclusion of the agreements in South Africa.</p><p><strong>Keywords</strong>: Access to justice; champerty; maintenance; non-lawyers; pactum de quota litis; public policy; third party litigation funding agreements.</p> Mpho Justice Khoza Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. The Reasonable Accommodation of Employees with Cancer and their Right to Privacy in the Workplace https://www.ajol.info/index.php/pelj/article/view/183351 <p>The duty of employers to reasonably accommodate employees living with disabilities is fundamental and is invoked on a daily basis in response to various health conditions which employees experience, such as cancer. While executing this fundamental duty, employers must be mindful of other rights which employees have, such as the right to privacy. Employers run the risk of violating the employees' right to privacy in the process of accommodating them if the employer discloses confidential medical information which must be used only for the purpose of making accommodations for the employee concerned, in this context an employee with cancer. This paper focuses on the duty of employers to reasonably accommodate such employees, and the right to privacy of the employees. Further, this paper aims to investigate if a balance can be maintained between the duty of the employer to make such accommodations and the right to privacy of the employees.</p><p><strong>Keywords</strong>: Reasonable accommodation; cancer; employee; right to privacy; disability; employer; discrimination; substantive equality </p> Charles Maimela Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. African Organic Product Standards for the African Continent? Prospects and Limitations https://www.ajol.info/index.php/pelj/article/view/183352 <p>Organic agriculture is a sustainable agricultural system with high environmental protection and animal welfare. In 2015, the world organic agriculture covered 50.9 million hectares with Oceania as the biggest regional producer with 22.8 million hectares and Africa as the least regional producer (1.7 million hectares). While organic agriculture may not be the only solution for African farming, it aligns with sustainable economic development and does not involve chemical inputs. Whereas there are different private standards, not all African countries have national organic standards and there are no pan-African organic standards. This paper discusses the need to address the proliferation of organic standards as a trade barrier through pan-African organic standards and inspire the development of harmonised domestic standards. It examines the prospects for pan-African organic standards, their limitations and makes recommendations for the making, the contents and implementation of such standards domestically and national measures to support African organic agriculture.<br /><strong></strong></p><p><strong>Keywords</strong>: Organic agriculture; certification; pan-African organic product standards; private organic standards; national organic regulation.</p> Odile Juliette Lim Tung Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Preserving the Integrity of Medical-Related Information – How "Informed" is Consent? https://www.ajol.info/index.php/pelj/article/view/183353 <p>Health care services are recognised as a right. These services are available to "everyone" who needs them. This availability ensures that users, that is, persons who receive treatment in a health establishment or who are in need of health services, are able to have access to these services. Generally, health care services should be available without undue financial burden to users. This then means that the government is saddled with an added financial and administrative burden to ensure their availability to users. However, the availability of the services depends on the availability of resources. In cases where resources are diminished, users who may be in need of health care services may be excluded. Furthermore, the availability of access to health care services does not sufficiently guarantee the securing of users’ personal information. Thus, it is enquired what levels of safeguards do health establishments have to secure the personal information of users? Do these security mechanisms allow for the disclosure of personal information to third parties, and how?</p><p><strong>Keywords</strong>: Personal information; processing; autonomy; security; critical databases.</p> Mzukisi Niven Njotini Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. The Protection of Children's Right to Self-Determination in South African Law with Specific Reference to Medical Treatment and Operations https://www.ajol.info/index.php/pelj/article/view/183354 <p>The Children's Act 38 of 2005 provides that children over the age of 12 years can consent to their own medical treatment or that of their children, provided they are of sufficient maturity and have the mental capacity to understand the benefits, risks, social and other implications of the treatment (section 129(2)). The predecessor of the Children's Act set the age at which children could consent to medical treatment at 14 years, and no maturity assessment was required (Child Care Act 74 of 1983 section 39(4)). Children over the age of 12 years can consent to the performance of surgical operations on themselves or their children, provided that they have the level of maturity described above and they are duly assisted by their parents or guardians (Children's Act section 129(3)). Before the Children's Act came into operation, the Child Care Act allowed children over the age of 18 to consent to their own operations (section 39(4)). Neither a maturity assessment nor parental assistance was required. (Note that when the Child Care Act was in operation the majority age was still 21 years.) In this article the question is considered if the relaxation of the limitations on children's capacity to consent to medical treatment and surgical operations in the Children's Act recognises the right of children to make independent decisions without the assistance of their parents or guardians or other substitute decision-makers. Firstly the article investigates the theoretical foundations of the protection of children's rights, particularly their autonomy rights. Secondly the meaning of the concept "competence" in medical decision- making and the related concept of "informed consent" are discussed. Thirdly some developmental and neuroscientific research on children's decision-making capacities and how they influence children's competence to give consent valid in law are highlighted. Fourthly possible legal foundations for the protection of children's right to self-determination in medical decision-making are sought in the Constitution and international and regional human rights treaties. Finally the relevant provisions of the Children's Act are examined in order to ascertain whether children's right to self-determination is sufficiently protected in South African law.</p><p><strong>Keywords</strong>: Children's autonomy; children's right to self-determination; children's competence; adolescent capacity; informed consent; consent to medical treatment by children; consent to surgical operations by children.</p> Hanneretha Kruger Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. An Appraisal of the Functioning and Effectiveness of the East African Court of Justice https://www.ajol.info/index.php/pelj/article/view/183355 <p>This contribution reflects on the functioning of the East African Court of<br />Justice (EACJ) and judges its effectiveness by assessing the Court's<br />role of ensuring adherence to, the application of and compliance with<br />the East African Community (EAC) Treaty. The EACJ became<br />operational on 30 November 2001, following its inauguration after the<br />swearing in of its judges and the Registrar. During this initial stage of<br />the Court's existence there were indications that the EACJ was failing<br />to stamp its authority on the activities of the Community. The main<br />reason for this failure is the existence of gaps in the EAC Treaty, which<br />prevent the EACJ from effectively discharging its functions. In addition,<br />as shown in this article, the EACJ has been delivering judgements on<br />the grounds of doubtful authority which has gradually diminished the<br />Court's legitimacy. Given its relevance to the EAC, this may therefore<br />be the time to audit the EACJ's functioning and reflect on whether it is<br />moving in the right direction. The hypothesis of this article is that the<br />EACJ has been struggling to establish its authority in the region,<br />mostly in the areas of human rights, the rule of law and good<br />governance. In tracing its history so far it is easy to discern its strategic<br />attempts at judicial law-making to arrogate to itself the role of the<br />protector of human rights. While it is acknowledged that the EACJ is<br />increasingly receiving cases of a divergent nature, most of these cases<br />have had little influence on the integration project or are outside the<br />scope of its mandate.</p><p><strong>Keywords</strong>: East African Court of Justice; functioning; effectiveness.</p> Ally Possi Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. A Duty of Support for All South African Unmarried Intimate Partners Part 2: Developing Customary and Common Law and Circumventing the <i>Volks</i> Judgment https://www.ajol.info/index.php/pelj/article/view/183356 <p>Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.</p><p><br /><strong>Keywords</strong>:Duty of support; customary law; contract; choice to marry.</p> Elsje Bonthuys Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective https://www.ajol.info/index.php/pelj/article/view/183357 <p>South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms.<br />Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.</p><p><strong>Keywords</strong>: Labour Law, Replacement labour, International Labour Organisation, The Right to Strike.</p> Tungamirai Kujinga Stefan van Eck Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives https://www.ajol.info/index.php/pelj/article/view/183358 <p>A photograph taken by a monkey is in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey, named Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belongs to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of Ninth Circuit a request for an appeal before a panel of eleven judges of the appellate court was denied. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on the authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg's six principles for testing authorship to test the authorship of photographs under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of and ownership of the copyright in a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for the purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage the conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.</p><p><strong>Keywords</strong>: Monkey selfie; authorship; copyright; photographs; Nigeria; South Africa.</p> Caroline B. Ncube Desmond O. Oriakhogba Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. New Developments in International Investment Law: A Need for a Multilateral Investment Treaty? https://www.ajol.info/index.php/pelj/article/view/183359 <p>This work contributes to the global discussion on the desirability of the multilateral investment treaty to ensure coherence in the way foreign investment is protected across the globe. The paper argues that whereas the international community is not ready yet to adopt multilateral rules on investment liberalisation, the time is ripe for multilateral rules on the standards of protection backed up by a multilateral court with a two-tier system. Most importantly, this contribution provides a template for the content of the standards of protection, having observed the new approaches to the traditional standards of protection typically enshrined in the bilateral investment treaties.</p><p><strong>Keywords</strong>: Bilateral investment treaties; standards of protection; multilateral investment treaty</p> Malebakeng Agnes Forere Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. Metaphysical Anthropocentrism, Limitrophy, and Responsibility: An Explication of the Subject of Animal Rights https://www.ajol.info/index.php/pelj/article/view/183362 <p>This article undertakes a critical analysis of subjectivity and exposes the metaphysical and anthropocentric quasi-transcendental conditions that give rise to the construct(ion) of the Subject. I locate a critical moment for the metaphysical Subject in the work of Martin Heidegger which, whilst sadly not sustained in his later writings, provides a point of departure for an examination of the significance that animality plays in the metaphysical tradition and its constitutive relation to the construct of subjectivity. I discern this relation to be violent and sacrificial and draw on Jacques Derrida's nonanthropocentric ethics against the background of Drucilla Cornell's ethical reading of deconstruction to construct a critique of approaches that assimilate animals to the traditional model of subjectivity in order to represent their identity and interests in the legal paradigm. The main argument that I seek to advance is that such an approach paradoxically re-constructs the classical humanist subject of metaphysics and re-establishes the subject-centred system that silences the call of the animal Other, thereby solidifying and extending the legitimacy of a discourse and mode of social regulation that is fundamentally anthropocentric. I examine how we can address, incapacitate and move beyond this schemata of power through a rigorous deconstruction of the partitions that institute the Subject and how deconstruction clears a space for a de novo determination of the animal "subject" that can proceed from different sites of nonanthropocentric interruption. What follows is a call to refuse the mechanical utilisation of traditional legal constructs and I argue in favour of an approach to the question of the animal (in law) that identifies and challenges anthropocentrism as its critical target. I ultimately propose a critical engagement with the underlying metaphysical support of animal rights at a conceptual level, rather than simply utilising the law pragmatically as an instrument of immediate resolution.</p><p><strong>Keywords</strong>: Animal rights theory; animal ethics; anthropocentrism; deconstruction; law and rights; limitrophy; metaphysics of subjectivity.<br />…………………………………………………….</p> Jan-Harm de Villiers Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 1) https://www.ajol.info/index.php/pelj/article/view/183363 <p>This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.</p><p><br /><strong>Keywords:</strong> Common-law employment contract; labour legislation; good faith; fairness; implied duty of trust and confidence; implied duty of fair dealing; constitutional development of the common law; right to fair labour practices; breach of the employment contract.</p> Andre M Louw Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2) https://www.ajol.info/index.php/pelj/article/view/183366 <p>This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.</p><p><strong>Keywords:</strong> Common-law employment contract; labour legislation; good faith; fairness; implied duty of trust and confidence; implied duty of fair dealing; constitutional development of the common law; right to fair labour practices; breach of the employment contract.</p> Andre M Louw Copyright (c) 2019-02-12 2019-02-12 21 1 10.4314/pelj.v21i1. "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 3) https://www.ajol.info/index.php/pelj/article/view/183374 <p>This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.</p><p><br /><strong>Keywords</strong>: Common-law employment contract; labour legislation; good faith; fairness; implied duty of trust and confidence; implied duty of fair dealing; constitutional development of the common law; right to fair labour practices; breach of the employment contract.</p> Andre M. Louw Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Delivery of the Compulsory Section 129(1) Notice as required by the National Credit Act of 2005 https://www.ajol.info/index.php/pelj/article/view/183375 <p>In terms of section 129(1) of the National Credit Act 34 of 2005 (NCA), a credit provider first needs to provide a consumer with notice of his default and a list of possible remedies to overcome the default, before enforcing the agreement in a court of law. This ensures that the consumer is given the opportunity to remedy his default by, for example, undergoing debt counselling instead of having to incur legal costs when defending legal action brought against him by the credit provider. Before the National Credit Amendment Act 19 of 2014 came into operation, the NCA neglected to specify how this notice should be delivered to consumers, and this has led to various conflicting decisions. The matter was eventually settled by the Constitutional Court in two separate cases. After the Constitutional Court pronounced on the matter, the National Credit Amendment Act came into operation prescribing the manner in which the notice must be delivered. Consumer-credit legislation that existed prior to the NCA coming into operation generally also made provision for similar notices to be delivered to consumers. In this article we briefly look at how the previous consumer-credit legislation dealt with the delivery of similar notices and also consider how the delivery of notices is currently governed by the NCA. Most of the problematic issues surrounding the delivery of the section 129(1) notice have been resolved, but some still remain. One such example is found in a recent Supreme Court of Appeal case, where despite the correct delivery of the notice to the consumer, the notice caused unintended jurisdictional problems for a credit provider trying to enforce the credit agreement.</p><p><strong>Keywords</strong>: National Credit Act; National Credit Amendment Act; previous consumer-credit legislation; consumer protection; default notice; section 129 notice; delivery; delivery of the section 129 notice; domicilium address; inform; notify; letter of demand; post office receipt; sent by registered mail/post; section 90(2)(k)(vi); jurisdiction; Post Office track and trace report; 28(1)(d) of the Magistrates' Courts Act 32 of 1944.</p> S. Govender M. Kelly-Louw Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Beyond Sexual Binaries? The German Federal Constitutional Court and the Rights of Intersex People https://www.ajol.info/index.php/pelj/article/view/183376 <p>In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.</p><p><br /><strong>Keywords</strong>: German Federal Constitutional Court; intersex; transsexual and transgender; sex and gender identity; human dignity, equality and freedom; sexual minorities in South Africa.</p> Henk Botha Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. The Duty to Produce One’s Firearm for Inspection in Terms of the <i>Firearms</i> Control Act: The Right to Silence under Siege? https://www.ajol.info/index.php/pelj/article/view/183377 <p>The right of the arrested and accused persons to remain silent at pre-trial and during their trial are significant to ensuring a fair trial. The purpose of the right to remain silent is to ensure that the state bears the duty to prove the guilt of the accused beyond reasonable doubt. In essence, the right serves to dissuade the state from engaging in any manner or form of coercing the accused person to assist the state in meeting its case, whether during pre-trial or during trial. An individual who is accused of committing an offence must not through his or her words or deeds assist the state in satisfying its burden of proof. The Firearms Control Act 60 of 2000 (the Act) seems to dilute these rights. The Act empowers the police official to request an owner of a legal firearm to produce it within seven days of the request at a threat of a criminal sanction. At the time the request is made the individual has been neither arrested for nor accused of a criminal offence. However, on the failure to produce the firearm on demand by a police official the individual may be charged with a criminal offence and evidence that has been obtained in terms of the Act would be admissible at the subsequent trial. This is despite the fact that at the time the request to produce a firearm is made the individual does not have a choice but to comply with the request lest he or she be charged with an offence under the Act. The purpose of this contribution is to investigate whether the individual to whom a request to produce a firearm has been made is entitled to the right to remain silent entrenched in section 35 of the Constitution, and whether the limitation of this right by the Act passes constitutional muster.</p><p><strong>Keywords</strong>: Accused; arrested; detained; firearms; limitation of rights; right to fair trial; right to silence; suspect.</p> PR Msaule Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. "Violence" in Sport and the <i>Violenti non fit Iniuria</i> Defence: A Perspective on the Death of the Cricket Player Phil Hughes https://www.ajol.info/index.php/pelj/article/view/183379 <p>This article evaluates the defence of violenti non fit inuiria in sport with specific reference to the principle of bonos mores or the “good morals” in society to tolerate injuries in sport. The increased prevalence of serious injuries in sport in the professional era, in which sportsmen earn their livelihood from sport, necessitate a review of the existing situation. The death of the Australian cricket player, Phil Hughes, as a result of fast, short-pitched bowling in cricket, has again put the spotlight on the aggressive and excessive use of "violence" in sport. The malicious intent in sport, to harm or even to kill an opponent, has made it necessary to ask if there should be any difference in the manner in which the perpetrator of violence in sport should be treated as against ordinary criminal law assault and murder offenders. A two-pronged approach is suggested in the article as a possible way of dealing with wrongfulness in cricket.</p><p><strong>Keywords</strong>: Defence of violenti non fit inuiria; contra bonos mores;wrongfulness; sport; cricket.</p> Pieter Labuschagne Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration https://www.ajol.info/index.php/pelj/article/view/183380 <p>This contribution examines the criminal responsibility that is imposed upon parents for the delinquent acts of their children. As South African law has been swayed by the legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this imposition has been addressed legislatively in both civil tort law and criminal law. The reasoning underlying the implementation of such specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability. These parental responsibility laws have been challenged constitutionally over the years in the United States, as critics argue that such laws interfere with the rights of parents to raise their children and are also a form of cruel punishment. Additional criticism submitted is that parental responsibility laws impose strict liability on parents. Further misgivings have also been voiced that many parents face challenges such as those of being a single parent or of suffering poverty, both of which will be exacerbated if fines are imposed, or if such parents are imprisoned for their child's misconduct. It will be shown that in the United States these laws have managed to withstand such challenges over many decades in both the fields of the law of tort and that of criminal law. Although the common law of tort provides for the liability of parents for their child's misconduct, the child's conduct must be specifically attributable to the parent's action or inaction. Tort parental responsibility legislation focuses not only on providing monetary compensation by parents where their children are unable to do so, but also aims to pursuade parents to better supervise their children. At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on the criminal liability of parents for failing to protect others from the actions of their children resulting from a failure in supervision, as well as a prevention of juvenile delinquency. The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of South African parental criminal responsibility law is then considered. It is proffered as a useful mechanism to regulate the misconduct of children currently falling outside the ambit of the criminal law.</p><p><strong>Keywords</strong>: Parental responsibility; delinquent acts of children; law of delict; criminal law; comparative approach with the United States.</p> Charnelle van der Bijl Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Attacks on the Judiciary: Undercurrents of a Political versus Legal Constitutionalism Dilemma? https://www.ajol.info/index.php/pelj/article/view/183381 <p>A number of landmark judicial review decisions and the resultant political backlash are arguably to supportive of the claim that political and legal constitutionalism are entrenched in South Africa. The common thread in the legislature and executive's reaction to judicial review decisions is that government supremacy is under threat from legal constitutionalism. More specifically, there is a perception that courts are meddling in the political space through judgments that are aimed at weakening the government's authority and power. Nonetheless, such decisions have had an effect of reinforcing the judiciary's legal constitutional role of reviewing the lawfulness of the other branches' activities. There is need for strategies to minimize this tension as the continued antagonism can have unintended consequences such as the delegitimisation of the judiciary.</p><p><strong>Keywords</strong>: Judicialisation; political constitutionalism; legal constitutionalism; judiciary; executive; constitution; government; politicisation.</p> Herbert Kawadza Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. <i>Modderklip</i> Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable? https://www.ajol.info/index.php/pelj/article/view/183383 <p>This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi &amp; Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).</p><p><strong>Keywords</strong>: Housing rights; unfeasible eviction; effective remedy; judicial expropriation.</p> Jackie Dugard Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Integration of the Bride as a Requirement for a Valid Customary Marriage: <i>Mkabe v Minister of Home Affairs</i>[2016] ZAGPPHC 460 https://www.ajol.info/index.php/pelj/article/view/183393 <p>Since the Recognition of Customary Marriages Act 120 of 1996 was promulgated in 15 November 2000 the courts are faced with the daunting task to determine whether a customary marriage is valid under the Act. The courts find it troublesome to determine exactly what the essential requirements under the living customary law are. One of the issues the courts have to deal with is the question whether the incorporation of a bride into her husband's family is an essential requirement for a valid customary marriage or can the families waive the requirement or condone non-compliance? The court in Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 found that the requirement can be waived or condoned. This case note criticises the Mkabe decision and illustrates why the incorporation of the bride is indeed an essential requirement for a valid customary marriage.</p><p><strong>Keywords</strong>: Customary Law, Customary Marriage, Recognition of Customary Marriages Act, Mkabe v Minister of Home Affairs.</p> Pieter Bakker Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Disposing of Bodies, Semantically: Notes on the Meaning of "Disposal" in <i>S v Molefe</i> https://www.ajol.info/index.php/pelj/article/view/183395 <p>In S v Molefe the presiding officer determines the meaning of the word "disposal" at the hand of two criteria, namely visibility and permanence; this means a body has to be permanently out of sight to be considered disposed of. He applies these two criteria in order to conclude if the accused is guilty of concealing the birth of her child by disposing of its body. In doing so, the court no longer interprets the word as an everyday word but turns it into a legal term. This note questions the linguistic soundness of the criteria by investigating how language structures space, and how these constructions relate to the word "disposal". In order to scrutinise the criteria, a text analysis was carried out by applying Talmy's ideas surrounding prepositions in structuring space and movement. Connected to this is the semantic difference between the words "seeing" and "looking": seeing is a sensory act, whereas looking is a cognitive one. In keeping with the contested word's status as a legal term, the difference between seeing and looking aids in formulating two new criteria. Courts may consider assessing whether disposal took place on the grounds of containment and movement; for instance, has the body been moved from one location to another and is the body being contained within another object like a bucket, a wooden box or a suitcase?</p><p><br /><strong>Keywords</strong>: Attempt; concealment of birth, disposal; dispose of; disposed; looking; ordinary meaning; seeing; space in language; uncompleted attempt.</p> Terrence R. Carney Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Some Drastic Measures to Close a Loophole: <i>The Case of Pienaar Brothers (PTY) LTD v Commissioner for the South African Revenue Services</i>(87760/2014) [2017] ZAGPPHC 231 (29 May 2017) and the Targeted Retroactive Amendment of Section 44...... https://www.ajol.info/index.php/pelj/article/view/183403 <p><strong>Full Title</strong>: Some Drastic Measures to Close a Loophole: &lt;i&gt;The Case of Pienaar Brothers (PTY) LTD v Commissioner for the SARS&lt;/i&gt;(87760/2014) [2017] ZAGPPHC 231 (29 May 2017) and the Targeted Retroactive Amendment of Section 44 of the Income Tax</p><p> </p><p>A taxpayer has the right to arrange his tax affairs within the constraints of the law to his best advantage to pay the least amount of tax. Coupled with this right is the taxpayer's right to certainty, which entails that the time of payment of taxes, the manner of payment, and the amount of payment must be clear and plain to the taxpayer and to any other person. Accordingly, a taxpayer must have peace of mind that revenue laws will not be amended arbitrarily, retrospectively, and with the effect that the taxpayer's position is affected negatively. The South African tax legislation allows the deferral of tax liability when amalgamation transactions, asset for share transactions, and mergers and acquisitions are embarked upon by a taxpayer. This article analyses the judgment in Pienaar v Commissioner: South African Revenue Services (87760/2014) [2017] ZAGPPHC 231 (29 May 2017) critically with specific reference to amalgamation transactions, the taxpayer's right to tax certainty, and the application of retroactive amendments to completed transactions.<br /><strong></strong></p><p><strong>Keywords</strong>: Retroactive amendments; secondary taxes on companies; roll-over relief; tax avoidance; share premium; share capital; contributed tax capital.</p> Liezel Tredoux SP van Zyl Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Sounding the Alarm: Government of the Republic of Namibia v LM and Women's Rights during Childbirth in South Africa https://www.ajol.info/index.php/pelj/article/view/183404 <p>Government of the Republic of Namibia v LM [2014] NASC 19 (hereafter the LM case) concerns the involuntary sterilisation of women during childbirth. The Supreme Court of Namibia found that obtaining consent during the height of labour is inappropriate because labouring women lack the capacity to consent because of the intensity of their labour pains. This article recognises that the LM case may make its way into current litigation strategies against involuntary sterilisations in South Africa and for this reason I evaluate the soundness of the court's reasoning in the LM case. I argue that the court relied on the harmful gender stereotype that labouring women lack the capacity to make decisions, I expose this stereotype as baseless and demonstrate the harmful consequences of its perpetuation. Finally, I demonstrate why the reasoning in the LM case is particularly problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth.<br /><strong></strong></p><p><strong>Keywords</strong>: Involuntary sterilisation; childbirth; informed consent; capacity; obstetric violence; human rights.</p> Camilla Pickles Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. The Constitutionalisation of the Test for Statutory Illegality in South African Contract Law: Cool Ideas v Hubbard 2014 4 SA 474 (CC) https://www.ajol.info/index.php/pelj/article/view/183405 <p>This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J.</p><p><strong>Keywords</strong>: Contract law; statutory illegality; constitutionalisation; Cool Ideas v Hubbard.</p> Odwa Golela Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. A Duty of Support for All South African Unmarried Intimate Partners Part I: The Limits of the Cohabitation and Marriage Based Models https://www.ajol.info/index.php/pelj/article/view/183406 <p>The democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appear to be based either on marriage (in the case of Muslim marriages) or relationships similar to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.</p><p><strong>Keywords:</strong> African women; duty of support; maintenance; unmarried opposite sex partners; same-sex partners; Muslim marriage; customary law.</p> Elsje Bonthuys Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Book Review: Moosa IA Publish or Perish. Perceived Benefits versus Unintended Consequences (2018 Edward Elgar Publishing UK) ISBN: 978 1 78643 492 0 https://www.ajol.info/index.php/pelj/article/view/183407 <p>This contribution reviews the book by Imad A Moosa entitled Publish or Perish. Perceived Benefits versus Unintended Consequences published by Edward Elgar Publishing in 2018.</p><p><strong>Keywords</strong>: Higher education research; publish or perish; teaching and learning.</p> Marita Carnelley Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1. Book Review: Frankenberg G Comparative Constitutional Studies – Between Magic and Deceit (2018 Edward Elgar Publishing UK) ISBN 978 1 78254 897 3 & 978 1 78254 898 0 (eBook) https://www.ajol.info/index.php/pelj/article/view/183408 <p>This contribution reviews the book by Günter Frankenberg titled Comparative Constitutional Studies – Between Magic and Deceit published by Edward Elgar Publishing in 2018.</p><p><strong>Keywords: </strong>Comparative constitutionalism; postmodernism; critical legal thinking</p> Francois Venter Copyright (c) 2019-02-13 2019-02-13 21 1 10.4314/pelj.v21i1.