bluuebunny/crossref_metadata_2025 huggingface dataset:
Can We Co-Construct a Field of Management / Administration Engaged with the Majority?
Authors: Faria Alexandre , Abdalla Márcio Moutinho , Guedes Ana Lucia
Published: October 2021

Abstract Dynamics contrary to the life of the majority mobilized by neo-imperial neo-liberal capitalism evolving toward neo-fascist populism has become virtually invisible to the field of Management/Administration, which is driven by dynamics of appropriation-contention focused on alternatives and transmodern epistemes of the emerging South-East. We analyze this picture of radicalization of global coloniality within the context of counterrevolutionary neoliberalism facing dynamics of dewesternization and decoloniality from a South-North dialogue between Decolonial Theory/Option and Critical Realism. By proposing a critical/decolonial transmodern framework, we unveil dynamics of invisibilization/visibilization against the life of the majority, invisibilized by market sub-theorization and dominant discourse and by the liberal university and its business/management schools. In the end, we propose to recover the expanded relevance of “administration/management” engaged with the majority, through reappropriation dynamics based on de-subalternization of non-market and ‘de-celebration’ of free market.
Social Management: Epistemology Beyond Paradigms
Authors: Oliveira Daniel José Silva
Published: October 2021

Abstract The objective of this theoretical essay is to propose a new path for the epistemological debate in the field of social management that goes beyond the paradigmatic boundaries. Based on studies that deal with social management from different perspectives, a comparison was made between models based on the thesis of incommensurability by Thomas Kuhn – such as the Gibson Burrell and Gareth Morgan diagram of sociological paradigms – and an alternative to break away from the paradigmatic mentality: the circle of epistemic matrices. The study demonstrated that the logic of incommensurable paradigms is not adequate to guide social management studies due to its complexity and plurality. This was proven by the identification of multiple sociological approaches adopted in field studies, including hybrid approaches. In this sense, the circle of epistemic matrices proved to be more appropriate, because instead of impenetrable boundaries, it allows transit between the matrices and enables a dialogue between different sociological approaches.
Unidades de Conservação Ambiental – uma Análise Pragmatista da Gestão e dos Modos de Existência Organizacional de uma Estação Ecológica
Authors: Matarazzo Gustavo , Serva Maurício
Published: October 2021

Abstract Protected areas are the main instrument used for protecting and conserving nature (UN, 2018). In Brazil, these areas are called Unidades de Conservação (UCs), or Conservation Units in English, and despite their territorial coverage and the complexity of their problems, they have not been properly studied by the area of administration. As a result, in this article we aimed to broaden the understanding about the modes of existence, as well as about the management of a protected area in a particular territory. For this, we took a pragmatist epistemological approach, favoring action above all. The study material derives from ethnographic research using participant observation at a UC managed by the Chico Mendes Institute for Biodiversity (ICMBio). As results, we identified three distinct modes of existence of the organization, namely: environmental education; production of expertise; and protection and inspection of nature. The analysis of these modes of existence enabled a better understanding of how specific organizational configurations emerge that situationally position the actors in different ways, engendering collective action and its management. Finally, we forge arguments that highlight possible contributions of a pragmatist epistemology to the organizational analysis of UCs.
`Representing and Being Represented in Turn’ - A Symposium on Hélène Landemore’s "Open Democracy"
Authors: Mansbridge Jane , Cohen Joshua , Cammack Daniela , Stone Peter , Achen Christopher H. , Leib Ethan J. , Landemore Hélène
Published: October 2021

Hélene Landemore’s Open Democracy challenges today’s democracies to meet their legitimacy deficits by opening up a wide array of participatory opportunities, from enhanced forms of direct democracy, to internet crowdsourcing, to representation through random selection to a citizens’ assembly: “representing and being represented in turn” (p. xvii).  Her aim: to replace citizen consent with citizen power.  The critics advance both praise and misgivings.  Joshua Cohen asks if Landemore's innovations are best understood as supplements or alternatives to the current system. Daniele Cammack argues for the significance of open mass meetings as well as smaller representative bodies. Peter Stone considers citizens’ assemblies inadequate for popular sovereignty.  Christopher Achen warns of problems in accurate representation, through both self-selection into the lottery and domination in the discussion. Ethan Lieb argues that particular innovations are useful only in some contexts, and that in each citizens should learn their appropriate role responsibilities. Landemore responds by agreeing, clarifying and rebutting.
THE CONTRACT OF EMPLOYMENT IN LABOUR LAW: OBSTACLE OR PANACEA?
Authors: Radley Henrico  , Nicola Smit
Published: October 2021

The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights. This article counters this view by illustrating the changed nature of the traditional foundation of the employment relationship, known as the contract of employment. The advent of a constitution and our courts’ willingness to develop and strengthen rights and obligations arising from the contract of employment are considered. In addition, the impact of legislation, collective bargaining and the recent more purposive interpretation of the statutory definition of “employee” are discussed. The writers conclude that, although the contract of employment is not a panacea to the  employment relationship, it is useful and expedient when interpreted and enforced against the backdrop of constitutional imperatives.
IS THE RIGHT TO DIE WITH DIGNITY CONSTITUTIONALLY GUARANTEED? BAXTER V MONTANA* AND OTHER DEVELOPMENTS IN PATIENT AUTONOMY AND PHYSICIAN ASSISTED SUICIDE
Authors: Suhayfa Bhamjee
Published: October 2021

This article examines the question of whether the right to life encompasses the right to die with dignity. It looks at the concepts of autonomy and paternalism as they exist as major themes on either side of the debate. Physician Assisted Suicide (Voluntary Euthanasia) has come under the spotlight in several jurisdictions, not just our own. Most recently in Montana, USA, the issue came before the Supreme Court for deliberation. The states of Washington and Oregon have legislations specific to PAS, legitimizing assisted suicide and removing wrongfulness from the actions of a physician who assists in the prescribed manner. Montana does not have specific legislation, but instead relied on the clauses of its Constitution, and it was held that the right to die with dignity is constitutionally guaranteed in that state. Here, argument is made suggesting that the right to die with dignity, in other words, to seek and easy passing through PAS, is also guaranteed in our Constitution.
PRIVATE INTERNATIONAL LAW / CONFLICT OF LAWS AND DIAMOND TRADE
Authors: Fikile Portia Ndlovu
Published: October 2021

Any researcher of South African diamond laws would find it inevitable that such research discusses the relationship between international diamond transactions and conflict of laws. This is particularly evident in cases where legal disputes have arisen pertaining to such transactions. This article will make reference to the terms “private international law” and “conflict of laws” interchangeably, although “conflict of laws” will be preferred for reasons of taste rather than logic. The aim of this paper is to illustrate the concept of conflict of laws in general and how it significantly impacts the manner in which courts will ultimately decide on the law to be applied in a matter possibly involving inter alia international diamond transactions. This demonstrates the consistent relevance of conflict of laws particularly in light of the global economy. The correct identification and understanding of conflict of laws’ principles can be stretched to accommodate all other areas of international trade. However, for the purposes of understanding how diamond trade is impacted by conflict of laws in South Africa, this paper will be limited to the legal context of diamond-relevant trade and the latest guidelines provided by our courts in relation to the choice of law in matters where conflict of laws has arisen.
STANDARDS OF PROOF: AID OR PITFALL?
Authors: Andra le Roux-Kemp
Published: October 2021

During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which the presiding officer can measure the evidence submitted consequently plays a pivotal role. This standard of proof (bewysmaatstaf) represents the standard of guilt in legal science and has also been described as a standard of conviction. The standard of proof does not pertain to the inherent qualities of evidentiary material, but rather to the degrees of conviction of the presiding officer in a particular case. The function of thestandard of proof is furthermore to provide presiding officers with a guideline/yardstick to measure the degree of conviction that the general public believe the presiding officer should have over the correctness of all the factual conclusions in the particular proceedings. In this article, the standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences.
THE INFLUENCE OF PLAIN LANGUAGE AND STRUCTURE ON THE READABILITY OF CONTRACTS
Authors: Stephen Newman
Published: October 2021

Contracts form an integral part of our existence, both in our work and personal environments. They are an unavoidable consequence of our participation in the commercial world. As such they are important since they will determine the distribution of wealth and power in society. South African law has always stuck religiously to the principles of freedom of contract and pacta sunt servanda. That is to say, everyone should have the utmost freedom to enter into contracts with whomever they please and once that agreement has been struck it must be adhered to. Through the application of these principles the law of contract obtained a high degree of certainty which is important for the parties to a contract because they know what their rights and obligations are. Furthermore they are safe in theknowledge that the contract is enforceable. While this may be an ideal situation we do not live in an ideal world. A large percentage of our society has had little contractual experience and even those that have are still regularly involved in contacts over which they have no control. Whilst consumers supposedly have freedom to contract, they very often have no leverage to negotiate the terms of the contract since a business will often make use of a standard form contract. As a consequence of this lack of bargaining power, consumers entering into contracts may not bother to read the terms since they are bound by them no matter what. Another reason is that they may be drafted and set out in such a way as to dissuade consumers from reading them.
DEBT COUNSELLING V DEBT ENFORCEMENT: SOME PROCEDURAL QUESTIONS ANSWERED BMW Financial Services (SA) (Pty) Ltd v Donkin 2009 6 SA 63 (KZD)
Authors: Corlia van Heerden  , Hermie Coetzee
Published: October 2021

The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challenging piece of legislation. It provides for various novel approaches to debt enforcement in respect of credit agreements and has introduced debt-relief measures in respect of over-indebtedness and reckless credit that are new to South African consumer credit legislation. It is thus inevitable that in applying the provisions of the Act various issues will arise that will require interpretation and, therefore, intense scrutiny. In the recent judgment of BMW Financial Services (SA) (Pty) Ltd v Donkin, Wallis J was required to scrutinize various aspects relating to debt review and debt enforcement in order to decide the consumer’s fate as influenced by the NCA (66; and see also s 130(1)(a)).
GEEN SEKS, GEEN SKADEVERGOEDING
Authors: Magda Slabbert  , Carina van der Westhuizen
Published: October 2021

Daar kan nie langer ernstiger gevolge aan verlowingsverbreking geheg word as aan huweliksbeëindiging nie. Dit is die gevolgtrekking wat adjunkpresident Harms gemaak het in die saak Van Jaarsveld v Bridges (ongerapporteerde saak no 344/09 2010 HHA ZASCA 76 van 27 Mei 2010). Wanneer ’n verlowing verbreek is, kon die benadeelde party die “skuldige” party dagvaar vir troubreuk en as troubreuk bewys is, kon daar ook ’n eis om skadevergoeding ingestel word. Alhoewel dit nie ’n vereiste is nie, word ’n huwelik gewoonlik deur ’n verlowingskontrak voorafgegaan. Hierdie kontrak is ’n kontrak sui generis. Die verlowing is ’n kontrak om in die huwelik te tree en sodra die huwelik voltrek word, kom die kontrak tot ’n einde. In die Romeinse reg kon die partye nie gedwing word om ’nverlowingskontrak te sluit nie, en as die verlowing verbreek word, kon geen skadevergoeding geëis word nie. In die Suid-Afrikaanse reg kan daar wel vandag beperkte skadevergoeding na die verbreking van ’n verlowingskontrak geëis word. Die hof sal in navolging van die Bridges-uitspraak slegs verspilde uitgawes aangegaan ten opsigte van die huwelik se voorbereidingsin ag neem. Vroeër is die volgende in ag geneem by die bepaling van skadevergoeding; die geldelike verlies wat die eiser gely het, die finansiële posisie van die verweerder, die sosiale stand van die partye en die omvang van die eiseres se emosionele pyn. Wanneer ’n huwelik egter deur egskeiding beëindig word, kan daar nie skadevergoeding weens kontrakbreuk geëis word nie. Hierdie realiteit is onlangs weer bevestig in D v D (2007 ongerapporteer WPA, saaknommer 8422/2006; en sien ook Le Roux “Is ’n Huwelik ’n Kontrak?” 2010-02-24Beeld). In bogenoemde D v D is bevestig dat ’n huwelik nie ’n kontrak is nie en derhalwe is die remedies vir kontrakbreuk nie tot die beskikking van die benadeelde party nie. Die gevolg hiervan is dat ongeag die feit dat seksuele gemeenskap ’n genieting van niemateriële aard van die huwelik is, kan ’n vrou (of man) nie regtens ’n eis om skadevergoeding teen haar man (of vrou) instel indien daar geen seks in die huwelik plaasvind nie. Dit kan wel bydra tot die bewys van onherstelbare verbrokkeling in die sin dat daar nie ’nnormale consortium omnis vitae bestaan nie.
OOPS, I SAID IT AGAIN … SELFPLAGIARISM OR TEXT RE-USE: WHEN OR IS IT ACCEPTABLE?
Authors: Tanya Woker
Published: October 2021

This article looks at the issue of self-plagiarism. Self-plagiarism occurs when an author re-uses work, in another publication, which has already been published. This may be the recycling of an entire article or it may be that the author re-uses text of already published works. Sometimes this is a legal issue because the re-use of already published works may be contrary to copyright law. In other instances the issue may be an ethical one, regarded in the same light as plagiarism. It is not always unlawful or unethical to republish works, but the boundaries of acceptable behaviour are not always easy to establish. This article seeks to establish what constitutes self-plagiarism taking into consideration the concept of plagiarism as well as certain principles of copyright law. The article concludes by suggesting that universities and journals adopt codes of conduct which outline in more detail the boundaries of self-plagiarism.
A NEW LOOK AT AN OLD QUESTION – PRECISELY WHERE DOES A CAUSE OF ACTION BASED ON CONTRACT OR DELICT “ARISE” IN THE CASE OF CIVIL CLAIMS IN THE MAGISTRATES’ AND SMALL CLAIMS COURTS?
Authors: David Hulme  , Stephen Peté
Published: October 2021

One of the chief jurisprudential considerations of the new South Africa must be access to justice. Whilst various possibilities for the realization of this imperative are aired periodically, the principles on which the civil jurisdiction of the courts is based are seldom considered in this regard. However, complex and arcane rules of jurisdiction can place what this article argues to be unfair and largely pointless limitations on a plaintiff, particularly in respect of magistrates’ and small claims courts’ actions. Section 28(1)(d) of the Magistrates’ Courts Act, for example, which confers jurisdiction on a court in relation to the locality of the cause of action, can proveparticularly problematic in the case of claims based on contract. Jurisdiction cannot be conferred under this provision unless every “element” of the contract – offer, acceptance, performance and/or breach, has occurred within the same magisterial district. This article examines the many practical problems which arise as a result, as well as various interpretations of the existing case law, which may serve to alleviate these problems to a certain extent. The authors conclude, however, that legislative reform may be the only way in which to truly solve the many dilemmas which arise in practice.
SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART ONE
Authors: Stephen Peté  , Sarah Pudifin
Published: October 2021

Politics, art and the law make uncomfortable bedfellows. The commissioning of public art by public bodies, in particular, often gives rise to bitter controversy. As a recent ongoing public spat over the suitability of a sculpture of three large elephants in the Durban area attests, South Africa is not immune from such controversy. Using the facts of this particular case as a lens, this article seeks to address the following central question: In the context of post-apartheid South Africa, when public works of art are commissioned by public bodies, to what extent do state officials have the right to involve themselves and/or interfere in the process? After outlining salient details of the Durban elephant sculpture case, part one of this article seeks to situate the central issues raised in their historical and ideological context. It then proceeds to address the issue of the “proper” relationship to be maintained between state officialsand public art within a constitutional democracy such as South Africa. A strong case is made that the values of tolerance, openness and diversity should be central in setting the broad parameters of the present debate on this issue. In particular, it is argued that the South African state should adopt a “hands-off” and “arms-length” approach when it comes to the funding and commissioning of public art. Part one of this article concludes with a discussion on the legitimate limits to free artistic expression.
WHICH STRUCTURES DOES THE HOUSEBREAKING CRIME PROTECT?
Authors: Shannon Hoctor
Published: October 2021

The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation, which implies the right to “feel secure in one’s own home”. With the broadening of the ambit of the crime (variously referred to as burglary or breaking and entering in other jurisdictions) beyond merely protecting habitation, differing approaches have been taken in defining the nature of the premises that can be broken into. Thus in English law, to be a “building” within the definition of the crime (in terms of s 9(1) of the Theft Act, 1968) the structure is required to have some degree of permanence and an inhabited vehicle or vessel is specifically included in theterm “building” (s 9(4) of the Theft Act, 1968). In Canada, breaking and entering (in terms of s 348 of the Canadian Criminal Code, RSC 1985, c.C-46) include, within the understanding of a “structure” which can be broken into and entered, spaces enclosed by a fence, but not unenclosed spaces. The position in South Africa has not been definitively resolved, although it can at least be accepted that it is incorrect to state that the breaking into and entering can only be in respect of an immovable structure, and cannot be committed by breaking into a movable structure. What then is the South African position regarding the nature of a “premises” which is protected by the housebreaking crime?
A MISSED OPPORTUNITY TO SETTLE THE LAW ON DNA TESTING IN PATERNITY DISPUTES YD (now M) v LB 2010 6 SA 338 (SCA)
Authors: Michael Buthelezi
Published: October 2021

On 17 September 2010, in (YD (Now M) v LB (2010 6 SA 338 (SCA)), the Supreme Court of Appeal (SCA) unanimously delivered what should have been a ground-breaking decision in the use of deoxyribonucleic acid (DNA) testing for paternity disputes. This was an appeal against the decision of Murphy J, in order to determine the child’s paternity. An order for DNA tests was granted by the court a quo against the mother and her daughter, Y, to determine whether Mr LB (B) was the biological father of Y in the case of unmarried persons. If the tests proved that he was the father, he would then be entitled to full parental rights. This judgment should have been ground-breaking for two main reasons. First, YD was the first SCA judgment dealing with the use of scientific tests in paternity disputes. Until then, different provincial divisions had reached different conclusions on the court’s power to compel either a minor or an adult to submit to the tests. Thus, YD was an ideal opportunity for the SCA to unify “the provincial divisions”, that is, to bring certainty of law regarding DNA testing for paternity disputes. Second, the decision came at a time of the constitutional era and the era of the Children’s Act (38 of 2005) with its section 37, which deals with parties not willing to submit to DNA testing in paternity disputes. In particular, section 37 is meant to be a statutory intervention seeking to achieve a compromise position where the court is faced with the evil of having to force a recalcitrant adult to submit himself or the minor child, against his or her will, for testing where paternity is disputed. Hence, this was an opportunity for the SCA to put section 37, which had not been tested before a court of law, into perspective. However, the court missed this golden opportunity. Therefore, the purpose of this note is to provide a critical analysis of the SCA’s decision of YD. It begins with a brief overview of the legal position prior to the judgment of YD and concludes by reviewing the possible effects of the YD judgment.
NOT LETTING THEM WHISTLE: THE LABOUR APPEAL COURT’S APPROACH TO THE PROTECTED DISCLOSURES ACT AND PROTECTING PARLIAMENT’S EMPLOYEES
Authors: Craig Bosch  , Rochelle le Roux
Published: October 2021

The Protected Disclosures Act 26 of 2000 was passed with the aim of protecting whistleblowers in the workplace. The decision of the Labour Appeal Court in Parliament of the Republic of South Africa v Charlton (2010 31 ILJ 2353) highlights the potential shortcomings of the Act which, if interpreted in the manner suggested by this court, could deprive many whistleblowing employees of the protection that they deserve. This article suggests that the Labour Appeal Court failed to have proper regard to the objectives of the Protected Disclosures Act, the essential principles contained in the Constitution and, more particularly the Bill of Rights as well as internationallaw. If it had, it would have been compelled to conclude that the Protected Disclosures Act can and should be interpreted as applying to disclosures concerning the misconduct of Members of Parliament by the employees of Parliament.
THE LEGALITY OF THE AUTOMATIC TERMINATION OF CONTRACTS OF EMPLOYMENT
Authors: Tamara Cohen
Published: October 2021

The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that “an employer terminated a contract of employment with or without notice”. In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to theremedies afforded by section 193 of the LRA. However, not every termination of an employment contract constitutes a dismissal and a number of scenarios exist where an employment contract terminates lawfully by operation of law. The termination of a fixed-term contract by effluxion of time, termination of the contract due to supervening impossibility of performance and the attainment of a contractually agreed or implied retirement age all give rise to the lawful termination of an employment contract. Similarly the statutory “deemed-dismissal” provisions of application to employees in the public sector provide for the automatic termination of employment contracts in circumstances that the employee is absent without authorisation for a designated period of time. The effect of such automatic termination is that the employment contract terminates by operation of law and not by means of an act of the employer, resulting in the dismissal provisions of the LRA being legitimately circumvented. Labour-broking contracts typically include automatic termination clauses that provide for the automatic termination of employment contracts, between labour-brokers and their employees, when the broker’s client no longer requires the services of such employees. Similarly employers have sought to rely upon grounds of supervening impossibility of performance in order to argue that an employment contract has automatically terminated in the instance of absconding and imprisoned employees. This article will be examining the legality of the automatic termination of employment contracts in these contexts and the impact on employees’ rights to protection against unfair dismissal.
GOING GENTLY INTO THAT GOOD NIGHT: THE CONSTITUTIONALITY OF CONSENT IN CASES OF EUTHANASIA
Authors: Samantha Krause
Published: October 2021

Although consent is a justification ground in South African law, its applicability to cases of euthanasia has been the subject of controversy. It is submitted that relying on the distinction between omission and commission, or causation or intent will not prove useful in justifying mercy killing. In terms of the South African Constitution (and various human rights guaranteed therein), there may be compelling arguments for legalizing euthanasia. For instance, section 10 of the Constitution guarantees the right to dignity. A lack of control over your destiny essentially involves a loss of dignity. Further, the right to dignity and the qualified right to personal autonomy inform section 14: the right to privacy. This right holds that an individual can make certain fundamental private choices without state interference. Surely this would extend to how to end one’s life? This article advocates that a rights-based approach be used to inform the doctrine of consent. This would entail taking the victim’s shared responsibility into account thereby reducing the perpetrator’s fault.
PROTECTING THE CHILD VICTIM IN SEXUAL OFFENCES: IS THERE A NEED FOR SEPARATE LEGAL REPRESENTATION?
Authors: Desan Iyer  , Lonias Ndlovu
Published: October 2021

The number of children being sexually violated on a daily basis continues to escalate against a backdrop of a dearth in the conviction rate of their attackers. This is notwithstanding global efforts being made to protect children from the harrowing experience of being sexually violated. Creative measures such as the introduction of innovative child legislation have been largely neutralized by the inability of the criminal justice system to complement the child’s healing process. The gulf between policy and practice has given rise to a lack of protection in respect of the rights of children. In this paper, we seek to highlight the gaps in the South African criminaljustice system when it comes to safeguarding the interests of the minor complainant during the criminal process. We analyse key legislative instruments which purport to protect the minor victim. The analysis is aimed at determining whether or not the specified key provisions are in conflict with the Constitution. The introduction of separate legal representatives for child complainants is evaluated as an option in improving the plight of young child victims. The paper then concludes on an optimistic note by boldly opining that in line with legal developments in other international jurisdictions, the South African criminal justice system can accommodate the legal novelty of introducing separate legal representation for child victims.
THE IMPLEMENTATION OF THE RIGHT TO EDUCATION IN SOUTH AFRICA AND NIGERIA (PART 1)
Authors: Elijah Adewale Taiwo  , Avinash Govindjee
Published: October 2021

This is the first of the two articles dealing with the implementation of the right to education in South Africa and Nigeria. The article examines the meaning and the process of implementation of the right to education as well as the general nature of states’ obligations under the international human rights instruments regarding the right to education. The article examines the measures put in place at the international level towards realizing the right to education. While this first article examines legislative measures, the follow-up article examines the non-legislative measures, that is, administrative measures as well as other measures put in place to ensure theimplementation of the right to education. The right to education is an empowerment right which is given wide recognition in a number of important international and regional human rights instruments as well as in national constitutions. The article argues that in terms of the international human rights instruments, states are obliged to make primary, secondary and higher levels of education available, accessible, acceptable and adaptable to all in their territories. It posits that by having ratified those international agreements in which the right to education is guaranteed, both South Africa and Nigeria assumed obligations under international law enjoining themto realize the right to education and to respect freedoms in education in their respective territories. It submits that, despite the international obligations and commitments to provide education for all, there is a significant gap between what is stipulated and the practical realities in the two countries.
SO MUCH OWED BY SO MANY TO SO FEW: HOW THE FINANCIAL ADVISORY AND INTERMEDIARIES ACT 37 OF 2002 ADDRESSES “CONFLICT OF INTEREST”
Authors: Daleen Millard
Published: October 2021

Winston Churchill delivered his famous speech entitled “The Few” after the Battle of Britain of 1940. This historical conflict saw 2353 young men from Great Britain and 574 from overseas, pilots and other aircrew fly at least one authorized operational sortie with an eligible unit of the Royal Air Force or Fleet Air Arm during the period 10 July to 31 October 1940. Although conflict on the scale of a world war cannot be equated to conflicts of interest between financial-services providers (FSPs), representatives and clients, the potential damage that can be caused by intermediaries and representatives who act in their own interest can be devastating to that particular client. In addition, it also has wider implications for the financial-services industry. It is consequently up to the FinancialServices Board (FSB) to ensure that conflict of interest between intermediaries and representatives and clients are managed in anacceptable way. As a matter of background: The FSB was established by the Financial Services Board Act (97 of 1990) and has as its main objective the supervision of financial institutions in order to achieve maximum consumer protection. As such, the FSB acts as statutory registrar of a variety of financial institutions. Hattingh and Millard explain that the FSB is currently in control of the Collective Investment Schemes Control Act, the Financial Services Board Act, Financial Institutions (Protection of Funds) Act , Financial Supervision of the Road Accident Fund Act, Friendly Societies Act, Inspection of Financial Institutions Act, Long-term Insurance Act, Pension Funds Act, Short-term Insurance Act, Supervision of the Financial Institutions Rationalisation Act, the Securities Services Act, and the Financial Advisory and Intermediaries Act. The FSB drafted the FAIS Act with the aim of creating a regulatory structure which regulates the way in which intermediary and advisory services in respect of financial products are rendered. Conflict of interests is but one of the issues that arise between intermediaries, advisors, financial-services providers and clients and the purpose of this note is to analyse a number of key issues introduced by Board Notice 58 of 19 April 2010. This note sets out to explain what the position was before the introduction of the new rules on the management of conflict of interest. It then proceeds to discuss the new definitions that now form part of the legislation. In addition, it discusses the detailed provisions pertaining to conflict of interest and explains what a conflict-of-interest management policy entails. Finally, the note evaluates the new regulations and asks whether they have thepotential to eliminate unfair dealings by advisors and intermediaries and thereby enhancing the professionalism of those who work in the financial-services industry.
CURE OR CURSE? REGULATIONS ON THE DEMARCATION BETWEEN HEALTH-INSURANCE POLICIES AND MEDICAL SCHEMES
Authors: Daleen Millard
Published: October 2021

In South Africa, private insurance policies are regulated by the Long-term Insurance Act and the Short-term Insurance Act. Medical schemes fall under the Medical Schemes Act (131 of 1998) and yet, despite the fact that there are three dedicated statutes that deal with the risks relating to ill health, it seems that the distinction between insurance products and medical-scheme benefits isnot so clear. On 2 March 2012 National Treasury published the proposed amendment of regulations made under section 72 of the LTIA and under section 70 of the STIA. These are jointly referred to as the “Demarcation Regulations”. This note provides an overview of these proposals against the background of the difference between insurance business and medical-schemes business. In addition, itinvestigates the policy principles that informed the Demarcation Regulations and comments on the impact of those on the insurance industry and on medical schemes.
UNLAWFUL DETENTION: A DISAPPOINTING JUDGMENT Alves v LOM Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ)
Authors: J Neethling  , JM Potgieter
Published: October 2021

In Alves v LOM Business Solutions (Pty) Ltd (2012 (1) SA 399 (GSJ); [2011] 4 All SA 490 (GSJ)) the plaintiff, who had been indicted for murder, was convicted in the High Court of attempted murder on 13 December 2005. Leave to appeal was granted immediately. The appeal was directed to the full bench of the division and was heard on 29 February 2008, more than two years later. The appeal was successful and the plaintiff’s conviction and sentence were set aside on 5 March 2008. The plaintiff claimed that the long interval of time between the granting of the leave to appeal and the hearing thereof should be attributed to the negligence of the defendants in that they failed to ensure that an appeal record was prepared within a reasonable time. He alleged that, as a result of the defendants’ breach of their duty, he was incarcerated for about 15 months longer than was reasonably necessary in the circumstances. (The first defendant was a firm responsible for preparing the transcript for his appeal hearing; the second defendant was the Minister of Justice and Constitutional Development, responsible for the overall administration of justice in the country.) The plaintiff claimed generaldamages for psychological pain and suffering and special damages for loss of earnings.
BACK TO THE FUTURE: A LESSON IN FAIRNESS AND RETROSPECTIVITY S v Acting Regional Magistrate, Boksburg: Venter and Another (CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC)
Authors: Suhayfa Bhamjee
Published: October 2021

The purpose of any legislation is to safeguard the welfare of society. Any law that fails to do that cannot justify its existence. In S v Acting Regional Magistrate, Boksburg: Venter ((CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC)) the question of nullity of the particular wording of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007, hereinafter “the Act”) and its subsequent constitutionality, were in question. The court had to decide whether to confirm the ruling of the SouthGauteng High Court, Johannesburg (Case No A11/2010) that the particular wording of the section was inconsistent with the Constitution of the Republic of South Africa, 1996, or whether it could apply the various rules of interpretation and save the section from invalidity.
DO SEQUESTRATION PROCEEDINGS FALL WITHIN THE OVERALL AMBIT OF “ANY PROCEEDINGS” AS STIPULATED IN SECTION 130(3) OF THE NATIONAL CREDIT ACT 34 OF 2005?* Naidoo v Absa Bank Limited [2010] 4 All SA 496 (SCA)
Authors: Sasha-Lee Afrika
Published: October 2021

Naidoo v Absa Bank Limited is one of the few cases by a court in which the interface between the insolvency law and the National Credit Act 34 of 2005 arose since the commencement of the latter in 2006. Other cases highlighting this interface include Investec Bank Ltd v Mutemeri (2010 (1) SA 265 (GSJ)) and Ex Parte Ford (2009 (3) SA 376 (WCC). The enactment of the National Credit Act has had significantconsequences for the scope of remedies available to both debtors and creditors in terms of the insolvency law. The National Credit Act did not change the Insolvency Act 24 of 1936 dramatically. Section 84 of the Insolvency Act, which deals with goods delivered in terms of an instalment agreement to a debtor whose estate became subsequently sequestrated, was one section which was changed by the National Credit Act. However, the National Credit Act is now dealing exclusively with certain debts and the enforcement of those debts. These are debts arising out of credit agreements and therefore excluding the application of insolvency law when dealing with such debts. Section 4 of the National Credit Act determines when the Act is applicable. The National Credit Act provides sophisticated measures during a situation when consumers who are parties to credit agreements, which are not exempted from the application of the National Credit Act, are unable to pay their debts. These measures include debt reviewing, the declaration of a credit agreement as reckless credit and debt restructuring (see s 86(7) of the National Credit Act for the recommendations which a debt counsellor maymake after reviewing a consumer’s debts). In all other instances, normal civil remedies such as a garnishee order, sale in execution, an order for payment in instalments and the measures of the insolvency law are still means of redress available to a creditor. It issubmitted that this will not be the only time in South Africa where a possible overlap of remedies available under both insolvency law and under the National Credit Act will be adjudicated. Future motions will either try to enforce the application of the insolvency law or question its application, arguing for the application of the more specialized National Credit Act as seen in Naidoo v Absa Bank Limited.
ANCIENT RITUALS AND THEIR PLACE IN THE MODERN WORLD: CULTURE, MASCULINITY AND THE KILLING OF BULLS – PART TWO
Authors: Stephen Allister Peté  , Angela Diane Crocker
Published: October 2021

Each year in KwaZulu-Natal, South Africa, a ceremony is held by the Zulu people in honour of the “first fruits”. A certain part of what is known as the Ukweshwama ceremony involves the ritual killing of a bull by young Zulu warriors with their bare hands. The ritual is opposed by certain animal rights campaigners, who believe it is cruel to the animal which is sacrificed. A highly polarized debate has arisen between those opposed to any form of cruelty to animals on the one hand, and those seeking to defend ancient cultural practices on the other. The purpose of this article is to explore whether or not ancient rituals such as the ritual bull-killing at theUkweshwama ceremony have a place in the modern world, and to interrogate the implications of the dispute which has arisen for the development of South Africa’s constitutional democracy. The article is in two parts. Part One provides a brief synopsis of the importance of cattle within traditional Zulu culture and traces the public controversy surrounding the bull-killing ritual in KwaZulu-Natal. It also examines the legal arguments put before court on the issue, and discusses the origins in antiquity of certain of the main myths and rituals concerning bulls and bullkilling. Part Two compares and contrasts the respective controversies surroundingthe Ukweshwama bull-killing ritual on the one hand, and Spanish bullfighting on the other. It also examines the wide range of positions adopted by philosophers and legal scholars vis-a-vis difficult questions of animal rights and cruelty to animals. The two sides of the argument are weighed up and tentative conclusions are reached.
THE PURPOSE AND AMBIT OF THE OFFENCE OF CONCEALMENT OF BIRTH S v Molefe 2012 (2) SACR 574 (GNP)
Authors: Shannon Hoctor  , Marita Carnelley
Published: October 2021

The statutory offence of concealment of birth inevitably attracts controversy. It has been argued in the 2008 Canadian case of R v Levkovic (2008 CarswellOnt 5744, 235 CCC (3d) 417, 178 CRR (2d) 285, 79 WCD (2d) 493, heard in the Ontario Superior Court of Justice) that it is clear from the history of this offence that its purpose was to stigmatize socially and punish criminally women who bore illegitimate or “bastard” children – “an objective entirely offensive in modern society to liberty and security of the person”. Moreover, in the Memorandum on the Objects of the Judicial Matters Amendment Bill 2008 (B48-2008), the precursor of the South African statute which amended this offence, the criticism of the Women’s Legal Centre recorded that the provisions of section 113 of the General Law Amendment Act 46 of 1935 (which sets out the offence) are “overly broad, lacking in definition, archaic and their constitutional validity is questionable, often impinging on the right to dignity of women charged under it”. The purpose of this note is to examine these criticisms, assessing both the substantive aspects and constitutional aspects of the offence, in the course of an appraisal of the recent case of S v Molefe (2012 (2) SACR 574 (GNP)). The case of Levkovic will provide a useful comparative reference point for the inquiry into the constitutionality of the offence. First, however, it is necessary to place the offence in its historical context.
THE CRIME OF DEFAMATION – STILL DEFENSIBLE IN A MODERN CONSTITUTIONAL DEMOCRACY?
Authors: Shannon Hoctor
Published: October 2021

The crime of defamation, known as criminal libel in some jurisdictions, has (along with associated “insult laws”) been identified in the 2007 Declaration of Table Mountain of the World Association of Newspapers and News Publishers as the “greatest scourge of press freedom on the continent”. The Declaration proceeds to call for the abolition of such laws as a matter of urgency. This call has similarly been made in the Caribbean context by the International Press Institute and in the Commonwealth by the Commonwealth Human Rights Initiative (CHRI). Writing on behalf of CHRI, Cowell notes the “chilling effect” of defamation laws (along with the procedural laws and regulations governing libel actions), defining this phenomenon as “partially … self-censorship on the part of individuals but in general…a wider culture of fear and uncertainty within society that limits free speech”. On this basis, Cowell argues (for CHRI) that criminal defamation represents the “clearest threat to the exercise of freedom of speech withCommonwealth states” and that the “threat of criminal sanction can act as asignificant and widespread deterrent against all freedom of speech”, and that they should therefore be repealed. Similar calls forthe abolition of criminal defamation laws have issued from the Organization of American States and the Organization for Security and Co-operation in Europe, and in response to a complaint relating to a criminal libel conviction emanating from the Philippines, the United Nations Human Rights Council stated that “States parties should consider the decriminalization of defamation … application of the criminal law [in the context of defamation] should only be countenanced in the most serious of cases and imprisonment is never an appropriate remedy”.Despite these calls for the abolition of the crime, it is noteworthy that the crime is retained in many jurisdictions, including European jurisdictions and Commonwealth countries. For example, every Commonwealth state in the English-speaking Caribbean (except Grenada) has specific criminal libel laws, Asian Commonwealth countries such as India, Singapore and Malaysia have corresponding criminaldefamation provisions, and so do African Commonwealth countries such as Botswana and South Africa. In addition, Commonwealth members such as Australia and Canada retain criminal defamation laws. An approach from the Commonwealth Press Union arguing for the abolition of the crime of defamation on the basis that such a crime threatens freedom of expression and is subject to abuse, being used in cases which do not involve the public interest, did not find favour with the Commonwealth Law ministers in their meeting in Accra in 2005.