Showing papers in "Potchefstroom Electronic Law Journal in 2018"

Pathological Corporate Governance Deficiencies in South Africa's State-Owned Companies: A Critical Reflection

Abstract: 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

Values and the Rule of Law: Foundations of the European Union – An Inside Perspective from the ECJ

Abstract: Let us remember what has been written, ratified and set into force with the Treaty of Lisbon. The preamble of the Charter of Fundamental Rights starts out by stating: "The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values." And it goes on: "Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice." Even if a cynic might have considered these words to be merely a lip service unlikely to disturb the power-play European governments were so eagerly engaged in, the Charter nonetheless became the supreme law of the land and the preferred tools of the trade of a rather awkward species of beings, already of bad repute for relying on the mere wording of legal acts, and even worse, for taking rights seriously: judges - in particular those of the European Court of Justice.

Intermediaries and the International Obligation to Protect Child Witnesses in South Africa

Abstract: 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.

Justificatory Theories for Intellectual Property Viewed Through the Constitutional Prism

Abstract: 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 Constitution, 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.

Untitled: Securing Land Tenure in Urban and Rural South Africa

Abstract: This contribution provides a review of the book edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins. It deals with the topic of land tenure in urban and rural South Africa and challenges the requirement of title deeds to secure land tenure.

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

Abstract: The DHET Research Output Policy (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. 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. 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. 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 assessmen

The legal nature of the embryo: Legal subject or legal object?

Abstract: 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.

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

Abstract: 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.

A duty of support for all South African unmarried intimate partners Part I: The limits of the cohabitation and marriage based models

Abstract: 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. Keywords: African women; duty of support; maintenance; unmarried opposite sex partners; same-sex partners; Muslim marriage; customary law.

Integration of the Bride as a Requirement for a Valid Customary Marriage: Mkabe v Minister of Home Affairs 2016 ZAGPPHC 460

Abstract: 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.

An analysis of the regulatory environment governing hearsay electronic evidence in South Africa: Suggestions for reform – Part Two

Abstract: The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence – 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 practitioners to deal with – one of these key challenges relates to electronic evidence, and in particular, the application of the hearsay rule 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 with 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. With the pervasive and burgeoning nature of technology and the internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in the future, and hearsay electronic evidence in particular will play an increasingly important role in years to come. Consequently, this two-part article will seek to summarise and comment on the proposed anomaly with regard to the key definition insofar as electronic evidence is concerned – data messages – and discuss how the proposed version of the Cybercrimes and Cybersecurity Bill (B6-2017), read together with Electronic Communications and Transactions Act No. 25 of 2002 (ECT Act) will leave South Africa with conflicting definitions of this term. Further, this article will analyse whether electronic evidence (data messages) can constitute hearsay within the meaning of section 3 of the Law of Evidence Amendment Act 45 of 1988; examine whether section 15 of the ECT Act should liberate electronic evidence from hearsay considerations; consider how real electronic evidence should be treated (as opposed to documentary hearsay evidence); consider the interaction of the statutory exceptions to the hearsay rule in the context of electronic evidence; analyse several analogous foreign jurisdictions – and consider how these jurisdictions treat hearsay electronic evidence; and finally, to conclude with several suggestions for law reform in the context of the SA Law Reform Commission Discussion Paper 131 Review of the Law of Evidence (2014).

Publish or Perish. Perceived Benefits versus Unintended Consequences

Abstract: 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.

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 Employment Equity Act 55 of 1998

Abstract: The purpose of this article is to analyse the grounds of justification to 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.

Metaphysical Anthropocentrism, Limitrophy, and Responsibility: An Explication of the Subject of Animal Rights

Abstract: 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. Keywords : Animal rights theory; animal ethics; anthropocentrism; deconstruction; law and rights; limitrophy; metaphysics of subjectivity. …………………………………………………….

The BRICS-Lawyers' Guide to Global Cooperation(Cambridge University Press 2017)

Abstract: This contribution reviews the book "The BRICS-Lawyers' Guide to Global Cooperation" authored by Rostam J Neuwirth, Aexandr Svetlicinii and Denis De Castro Halis published by Cambridge University Press in 2017.

The National Credit Act's Remedies for Reckless Credit in the Mortgage Context

Abstract: The National Credit Act 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 creditor provider under a mortgage agreement. The argument is made that the contractual and security rights of creditor providers amount to "property" for purposes of section 25(1) of the Constitution (the property clause) and that, to some degree or another, each of these remedies involve 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 what 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 ABSA v De Beer, 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 articles accordingly aims to provide some guidance with reference to the principles of constitutional property law.

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

Abstract: 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 however contingent 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 Abbott v Overstrand Municipality (2016) 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.

The scope of the powers of the minister of finance in terms of section 48(1)(b) of the customs and excise Act 91 of 1964: An appraisal of recent developments in case law

Abstract: This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.

The protection of children's right to self-determination in South African law with specific reference to medical treatment and operations

Abstract: 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. Keywords : 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.

The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law

Abstract: 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. The tension between community law and domestic law, international law and national 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. However, there is no guidance when it comes to community law and national law. This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.

Attacks on the Judiciary: Undercurrents of a Political versus Legal Constitutionalism Dilemma?

Abstract: 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

Deciphering the Composition of Section 79-Assessment Panels in the Criminal Procedure Amendment Act 4 of 2017

Abstract: Section 79 of the Criminal Procedure Act 51 of 1977 provides for the appointment of mental health professionals to assess an accused’s fitness to stand trial and/or criminal capacity if the court orders such an enquiry in terms of sections 77 and 78 of the Criminal Procedure Act . In terms of section 79, one mental health professional must assess an accused charged with a non-violent offence, whereas a panel of such professionals must assess an accused charged with an offence involving serious violence. The legislative provisions regarding the appointment of mental health professionals to a section 79-assessment panel are not without ambiguity. Section 79(1)(b) read with section 79(13) is problematic. Directives issued by the National Prosecuting Authority in terms of section 79(13) do not aid in clarifying the legal position either. The main point of contention is whether a section 79-assessment panel must consist of a minimum of two or three psychiatrists. This ambiguity creates challenges for presiding officers tasked with appointing section 79-assessment panels. When presiding officers appoint these panels incorrectly, it causes delays in the assessment process and the delivery of justice to the accused and the victim. The court considered the interplay between section 79(1)(b) and section 79(13) in S v Pedro 2015 1 SACR 41 (WCC). The judgment highlights the need to clarify the position in the Criminal Procedure Act regarding the appointment of section 79-assessment panels. This case provided the impetus for the amendment of section 79 through the Criminal Procedure Amendment Act 4 of 2017. This contribution explores the composition of section 79-assessment panels as provided for in the Criminal Procedure Act . Section 79(1)(b) and the seemingly contradictory provisions contained in section 79(13) are discussed. The S v Pedro judgment is discussed with a specific focus on the court’s interpretation of the interplay between these two provisions. Following the S v Pedro judgment, the Criminal Procedure Amendment Act 4 of 2017 amended section 79. This contribution explores the clarifying provisions of the Amendment Act regarding the composition of assessment panels

Human Rights and the New Sustainable Mechanism of the Paris Agreement: A New Opportunity to Promote Climate Justice

Abstract: In the light of the new era of climate action under the Paris Agreement (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 64, 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 Kyoto Protocol, 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

Pre-agreement assessment as a responsible lending tool in South-Africa, the EU and Belgium : Part 2

Abstract: 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.

A Duty of Support for All South African Unmarried Intimate Partners Part 2: Developing Customary and Common Law and Circumventing the Volks Judgment

Abstract: 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. Keywords :Duty of support; customary law; contract; choice to marry.

Pericles should learn to fix a leaky pipe – why trial advocacy should become part of the LLB curriculum (Part 2)

Abstract: 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.

The Registration of Special Notarial Bonds under the Security by Means of Movable Property Act and the Publicity Principle: Lessons from Developments in Belgium

Abstract: 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 it a popular and appropriate security object. Under the common law pledge, delivery of the movable property from the pledgor (debtor) to the pledgee (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 to promote 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 costs can be established. The South African legislature enacted the Security by Means of Movable Property Act 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 has in fact taken place thereby substituted 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.

Facing the Challenge of Improving the Legal Writing Skills of Educationally Disadvantaged Law Students in a South African Law School

Abstract: 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

Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives

Abstract: 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. Keywords : Monkey selfie; authorship; copyright; photographs; Nigeria; South Africa.

The testimonial competence of children: A need for law reform in South Africa

Abstract: 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.