bluuebunny/crossref_metadata_2025 huggingface dataset:
PRESCRIPTION: THE PRESENT INTERPRETATION OF EXTINCTIVE PRESCRIPTION AND THE ACQUISITION OF REAL RIGHTS
Authors: Magubane Celinhlanhla
Published: July 2021

The Prescription Act provides that a debt can prescribe or rather ‘expire’ and further that one can acquire ownership through prescription.1 Prescription in simple terms refers to old debt which occurs when it is no longer an obligation for a debtor to pay off their debt. One of the original methods of acquiring real rights is by the passage of time, and other various types of obligations may be rendered unenforceable by the effluxion of time.
POSITIONING RACE AT THE CENTRE OF LEGAL DISCOURSE IN POST-APARTHEID SOUTH AFRICA: DISSECTING CLIFF V ELECTRONIC MEDIA (PTY) LTD AND THE LAND REFORM CRISIS
Authors: Nhleko Nonhlelo
Published: July 2021

In this paper, I critique the manner in which law rationalises Black subordination and white supremacy through its assumption of racial neutrality and ontological equality.4 I seek to postulate the need for a culture of critique within South African jurisprudence and further challenge hegemonic liberal notions of ‘justice’ and the existing ‘reconciliation’ discourse. The calls for a ‘race conscious’ and general jurisprudence shall be advanced through the epistemological paradigm of Critical Race Theory which offers a politicised account of the law through the acknowledgment of the centrality of race in law and through debunking claims of law’s neutrality and objectivity.5
A CRITICAL ANALYSIS ON THE LAW’S ABILITY TO ERADICATE RACISM IN (POST) APARTHEID SOUTH AFRICA
Authors: Boloko Akhona
Published: July 2021

It has been over two decades since apartheid, which was declared a crime against humanity, ended. A Truth and Reconciliation Commission (hereafter TRC) was established in 1995 with the hopes of, amongst other things, promoting national unity and reconciliation.1 Whilst the TRC received many criticisms, it was also praised for promoting national unity and reconciliation. However recent social media posts which were seen as racist have shattered the picture of a reconciled nation free from racism.2 The government’s response to these manifestations of racism is of particular interest in this article. The government wants to enact legislation to criminalise racism as a way to not only deter, but to eradicate racism.3 In this article I will be critically analysing the law’s ability to eradicate racism and ultimately argue that while legislation may address individual discriminatory acts, it fails to address racism as a structural power system. I will do this by firstly determining the success of the TRC in achieving national unity and reconciliation. Secondly, I will briefly analyse post-apartheid South Africa through Antjie Krog’s book ‘A change of tongue’. Lastly, I will critically discuss the need to utilise a Critical Race Theory and African Jurisprudence in post-apartheid South Africa.
REFLECTION AND COGITATION ON THE FALLACY OF POST-APARTHEID JURISPRUDENCE AND THE RESIDUE OF APARTHEID JURISPRUDENCE: THE MARIKANA MASSACRE
Authors: Twala Tshepo
Published: July 2021

This article reflects on the fallacy of post-apartheid jurisprudence (particularly, the Marikana Massacre as a cornerstone of this ‘fallacy’) in South Africa. For the purposes of this article, the term ‘fallacy’ is used in its literal sense – that is, the so-called ‘post-apartheid jurisprudence’ is a mistaken belief, because there is still residue of apartheid economic policies in the ‘post’-apartheid legal dispensation. This mistaken belief is demonstrated below considering the events that took place prior (i.e. economic policies), during (i.e. law from below) and after (i.e. access to Justice) the Marikana Massacre, and how one of the instrumental projects of post-apartheid legal dispensation, that of transformative constitutionalism, was hindered during these events.
A COMPARATIVE ANALYSIS OF THE UNCITRAL MODEL LAW ON CROSS-BORDER INSOLVENCY AND EU INSOLVENCY REGULATION 2017, AGAINST THE BACKGROUND OF VARIOUS SOURCES OF CROSSBORDER INSOLVENCY LAW
Authors: Kurasha Primrose E.R.
Published: July 2021

In this investigation, I will compare and contrast the UNCITRAL model law on cross-border insolvency law (hereafter referred to as ‘UNCITRAL model law’) with the EU Insolvency Regulation against the backdrop of various sources or dispensations of cross-border insolvency law. In this comparison, I will highlight the similarities and differences between the two, as well as discuss the other sources in depth, as they largely inform my research. My main aim in including the other sources in this comparative study is to provide deeper insight into these two sources of international cross-border insolvency law, as provided for by academics and sages in the field of insolvency law. These other sources include legislation, common law, treaties and regional dispensations.
RE-IMAGINING A CULTURE OF JUSTIFICATION THROUGH TRANSFORMATIVE CONSTITUTIONALISM AND THE PHILOSOPHY OF UBUNTU
Authors: Kgabo Ofentse T
Published: July 2021

Twenty years after the adoption of the Constitution, it is fitting to reflect on the development of our constitutional democracy. In light of purposive interpretation of statutes, one is required to question the intention of the drafters of the Constitution, to consider the context which necessitated its promulgation and to contemplate whether effect has been given to the content of the rights and freedoms contained therein. Ever-increasing inequalities in our society have prompted a return to the promise of ‘transformative constitutionalism’. Klare defines transformative constitutionalism as a ‘long-term project of constitutional enactment, interpretation, and enforcement’ committed to transforming political and social institutions ‘in a democratic, participatory, and egalitarian direction.’ The main problem which will be evaluated in this article is identified by Klare as the ‘formalistic legal culture’ which persists in all spheres of our socio-political and economic life.
PRECARIOUS LIFE, JUDGMENT AND A STORY OF A STORK
Authors: van Marle Karin
Published: July 2021

Judith Butler in her work Precarious life. The powers of mourning and violence published in the aftermath of September 11 argues that the event raised the ‘question … as to what form political reflection and deliberation ought to take if we take injurability and aggression as two points of departure for political life.’1 After another year filled with events and actions that showed aggressions and caused injury on global, national and sometimes on a local level very close to home we might consider exactly the question invoked by Butler. She hopes for the ‘chance to imagine a world’ with less violence and where interdependency is deemed necessary and foundational to all relations. A theme coming to the fore in the first essay of Precarious life is the rise of censorship and anti-intellectualism in the US after September 11.2 For students and academics these issues should be of a big concern. To what extent are the media, artists, authors and closer to home students and academics free to express their views — even if not censored in strict legal sense, are we silenced, disencouraged, dissuaded to speak up and speak out? Maybe even a bigger concern is not only the absence of intellectual engagement, conversation and discussion at the university but the active antiintellectualism that comes in many guises.
THE COGITATION OF THE VALUE OF EPISTEMIC DIVERSITY IN SOUTH AFRICAN JURISPRUDENCE, AS INFLUENCED BY THE PROJECT OF INTELLECTUAL HISTORY: LESSONS FROM RHODES MUST FALL — ‘ALL “RHODES” LEAD TO THE COLONISATION OF THE MIND’
Authors: Twala Tshepo K.
Published: July 2021

This article examines the ideal epistemic aims of a critical jurisprudence in South Africa. It explains that epistemology is concerned with giving an account of knowledge and suggests that if legal scholars ought to aim at having their students acquire knowledge then their epistemic aims should be related to this goal. I contend that the epistemic aims of the law do not necessarily concern curricular subjects but with the way the work of a legal scholar should be guided by an understanding of the nature of knowledge itself. This paper not only deals with the historical development of political traditions but also gives attention to religious and communal intellectual practices. This paper also mulls the development of a South African critical race theory with reference to the thought of Steve Biko. In a wide sense, the purpose of this paper is also to bring the insights of the Black Radical Tradition to bear on the study of law and jurisprudence, with attention placed on the predicament of ‘post’-apartheid South Africa. In essence, this paper demonstrates that: ‘Only by rethinking the ideas that made us can we re-imagine the world’.
‘WAR IS NOT ALWAYS VIOLENT AND VIOLENCE IS NOT ALWAYS WAR.’ — AN ANECDOTE ON HOW LANGUAGE AND ULTIMATELY THE LAW IS USED TO PERPETUATE EPISTEMIC VIOLENCE IN SOUTH AFRICA
Authors: Maruapula Thato
Published: July 2021

The focus of this paper will be how linguicide is used as a mechanism to perpetuate epistemic violence in South Africa and how epistemic diversity is needed in order for those who find themselves ‘below the law’ to ascertain access to justice. Firstly, I will define the concepts ‘linguicide’ and ‘epistemic violence.’ Secondly, I will offer a critique on how the English language is not neutral but rather a socioeconomic tool that shapes power relations within society. Thirdly, I will introduce the critical theories of Black Consciousness and Marxism to show how the law is complicit in perpetuating racial and class inequalities in South Africa. I will then conclude with how access to justice can become a reality through the paradigm of decolonisation (‘of the mind’) as understood by various African authors and provide recommendations of an imagined alternative.
RETHINKING SOCIO-ECONOMIC RIGHTS IN THE SOUTH AFRICAN CONSTITUTIONAL FRAMEWORK FROM THE PERSPECTIVE OF HUMAN AGENCY: REFLECTIONS OF A LAW STUDENT
Authors: Mhlanga Vuso
Published: July 2021

In this article, I intend to focus on the notion of human agency. I argue that the ideologically laden concept of human agency should constitute an ideological and jurisprudential frame from which socioeconomic rights as enshrined in the Constitution should be construed. I seek to ground my submissions on human agency on theoretical perspectives which challenge the present uneven structures of power in South Africa. This essay draws from a multiplicity of disciplines such as Law, Social Sciences and Development Studies. Such a multipronged disciplinary approach to the notion of human agency furnishes a fresh jurisprudential angle to the manner in which socio-economic rights in the Constitution have been construed. The essay is alive to the March 2018 World Bank Report which sets out in clear detail the inequalities that stifle the agency of the majority of the population in South Africa.11 The essay will reconceptualise the notion of human agency in view of socio-economic rights in the South African Constitution. The philosophical contours which undergird my formulation of the concept of human agency will be discussed. In the end, I will provide some reflections regarding the way forward in an effort to engender agency on many South African citizen.
TOWARDS A SEXUALLY FREE SOUTH AFRICA: A FEMINIST AND CONSTITUTIONAL DEFENCE IN FAVOUR OF LEGALISING PROSTITUTION THROUGH THE RIGHT TO BODILY INTEGRITY
Authors: Manamela Thabang
Published: July 2021

The aim of this article is to argue that when recognised as persons, women can be independent enough to have the freedom to determine their sexual lives, including what meaning and benefit to derive from their sexual relations.18 Granted that Section 9 of the Constitution enshrines all of our rights to be treated equally as persons, women must be given rights and resources in line with them being equal persons.19 I will further argue that Section 12(2)(b) of the Constitution, to the extent that I relate it to prostitution, imposes a negative obligation on the state to refrain from refereeing sexual conduct.20 This negative obligation applies only to the extent that the sexual conduct in question involves adults who freely consent thereto. Throughout this article, I will argue that women’s vulnerability in prostitution is perpetuated by a continued criminalisation, and the Commission’s recommendation to maintain the status quo does not help to improve the plight of women involved in prostitution. On the contrary, criminalisation victimises prostitutes, and endorses a social stigma associated with prostitution.21 The Commission should have rather devoted its attention to finding solutions on how South Africa can undertake a process of legalising prostitution, and simultaneously address the exploitative nature of prostitution. I will also argue that by virtue of being a politically free society, women involved in prostitution should organise themselves politically, and not rely solely on legal remedies to advance their problems, but rather use political representation as their primary means by which to represent themselves. Have the remedies offered by the South African legal order been exhausted to provide utmost security for sexual freedom?
DEVELOPING THE SUBSTANCE OVER FORM DOCTRINE IN TAXATION AFTER THE JUDGEMENT IN COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE v NWK
Authors: Coertze Johan
Published: July 2021

In 1936 Lord Tomlin in IRC v Duke of Westminster (hereafter ‘Duke’)1 concluded that it is trite law that every man (and woman) is entitled to arrange his or her affairs as to pay the least amount of tax under the appropriate statutes. This sentiment has been a cornerstone of South African tax jurisprudence and was again repeated in Commissioner for the South African Revenue Service v NWK Ltd (hereafter ‘NWK’).2 This broad liberty in arranging one’s own tax affairs has, however, led some taxpayers to dress up their transactions and hide their’ true nature as to ‘either … secure some advantage which otherwise [the law] would not give, or to escape some duty which otherwise the law would impose’.3 The most prominent tool the courts can use to try and curb this type of abuse is the General Anti-Avoidance Rules (hereafter ‘GAAR’) in Section 80A to 80L of the Income Tax Act 58 of 1962 (hereafter ‘the Act’), other specific anti-avoidance provisions in the Act4 and the substance over form doctrine (hereafter ‘the doctrine’). This article is a reflection on the taxation in South Africa, but specifically anti-avoidance provisions as provided by legislation.
RESTORING ELECTRICITY USE WITH THE SPOLIATION REMEDY: A CRITICAL COMMENT ON ESKOM HOLDINGS SOC LTD V MASINDA
Authors: Muller Gustav
Published: July 2021

In Eskom Holdings SOC Ltd v Masinda1 (‘Masinda’) teams from the appellant removed various illegal connections to the national electricity reticulation grid. The removal was animated by a concern for the well-being of those people living in homes with illegal connections and to prevent damage to their property as a result of these dangerous connections.2 While the exact reasons for the removal of the illegal connections were not clearly articulated in the appellant’s submissions, it appears that the connections constituted an immediate danger to the public because the equipment were too small; it did not meet the prescribed quality standards; and it was not installed by an authorised contractor.3 The respondent argued that she used the electricity in her home by drawing supply through a prepaid meter and that this supply constituted an incident of her occupation. She successfully sought the restoration ante omnia of the electricity supply to her home in the Eastern Cape Division of the High Court, Mtatha.4 On appeal Leach JA reasoned that it could not have been the intention of the court a quo to order the restoration ante omnia of a connection ‘that was unlawful and a danger to the public.’ Restoration ante omnia that ‘complied with the necessary requirements of safety’ would not only have required the appellant to do something more than restoring the property to its former state,5 but also extended the purpose of the spoliation remedy to include the ‘reconstituted equivalent’6 of the specified property.7 However, if the court a quo intended the restoration ante omnia of an unlawful and dangerous electricity supply,8 the further difficulty would be that the order would be directing the appellant to ‘commit an illegality’ which itself would be sufficient for a court to refuse the spoliation remedy.9 Finally, Leach JA reasoned that the mere existence of an electricity reticulation supply in the respondent’s home is insufficient to afford her a right that qualified as an incident of her occupation.10 He therefore upheld the appeal11 and dismissed the respondents ‘terse’ claim as ‘misplaced’ and ‘insufficient’.12 In this article I provide a critical comment on the Masinda judgment. I seek to do so by providing a brief exposition of the importance of having access to and being able to stop unlawful interfere with your access to electricity in part 2. In part 3 I set out the requirements, features and application of the mandament van spolie. This is followed in part 4 with an analysis of the growing jurisprudence (comprising two high court judgments that predate democracy and two judgments from the Supreme Court of Appeal in the past decade) where the mandament van spolie was used to seek restoration ante omnia of electricity use.
TO BE BLACK AND ALIVE: A STUDY OF THE INHERENT RACISM IN THE TERTIARY EDUCATION SYSTEM IN POST-1994 SOUTH AFRICA
Authors: Swanepoel Chelsea L.
Published: July 2021

Through this paper, I aim to disprove the claim that knowledge, academic thought and societal discourse are neutral and objective, as well as explore links between transformation of the university system, the teaching of law and society in general. I argue that the constitution has failed at achieving a ‘free, equal and unified’ South Africa despite its objectives, and that the examination of the law with a critical approach of its racially charged aspects will offer some insight into addressing deep colonial biases.12 This will be done through examining the various arguments surrounding Eurocentrism and white supremacy in academia, society and the law.
THROUGH THICK AND THIN: FROM THE REGULATION OF QUEERNESS TO QUEER THEORY AS DECOLONISATION
Authors: van Wyk DJ
Published: July 2021

The purpose of this essay is to investigate, criticise and recontextualise the concept of queerness in South Africa. I will do this by focusing on the historical regulation of queerness, the attempted transformation of queerness and the inevitable decolonisation of queerness. This critical investigation and analysis will be centred around three main questions regarding queerness: (1) How queerness has been regulated by western and apartheid concepts of social interaction?; (2) How queerness has been transformed in Post-1994 South Africa — specifically before and after the implementation of the Civil Union Act?; and (3) How can the current marriage systems — and queerness — be decolonised using queer theory? I will approach this essay using concepts of transformative constitutionalism, queer theory, and decolonial theory. By answering these three questions, I aim to prove that queerness (as a concept and identity) is something that requires sufficient decolonisation because it has been historically regulated, inaccurately defined and inadequately transformed. Furthermore, I will demonstrate how legal systems and knowledge, dealing with queerness, ought to be interrogated and altered to best represent queer people.
THE EASY WAY OUT? CONSTITUTIONAL AVOIDANCE AND ITS IMPACT ON HUMAN RIGHT ENFORCEMENT IN BOTSWANA
Authors: Boiki Kago K.Y.
Published: July 2021

This article seeks to examine the doctrine of constitutional avoidance and assess whether it has had an impact on the protection of Human Rights in BotswanaBotswana through the courts. This article will begin with the definition the doctrine of constitutional avoidance. This will be followed by an overview of Botswana’s constitution and its Human Rights framework. The article will then go on to discuss the application of constitutional avoidance in Botswana, highlighting some case law that has been instrumental in the development of the doctrine of constitutional avoidance.
A DISCUSSION OF INTELLECTUAL HISTORY, JURISPRUDENTIAL THEORIES AND FEMINISM IN THE ERADICATION OF EPISTEMIC VIOLENCE IN SOUTH AFRICA
Authors: Pilla Kiasha
Published: July 2021

This analysis and discussion of intellectual history, along with analysing theories concerned with legal pluralism, provides insight into the ideas and ideologies currently influencing jurisprudence that aims to eradicate epistemic violence. This paper will illustrate how the aforementioned analysis, along with the concept of transformative constitutionalism, actively contributes towards the development of jurisprudence that aims to diminish epistemic violence and the inequality that emanates from it. The paper will illustrate how theories concerned with legal pluralism, traditions and ideologies, such as Marxism, Black Consciousness, feminism and religion, all play a role in contributing towards the development of a critical jurisprudence that will aim to eradicate epistemic violence in several sectors of the South African society. This paper will further illustrate how feminism as an ideology, and in the field of sociological law, can uncover and subsequently empower hidden and marginalised narratives, thereby promote the eradication of epistemic violence. In addition, the paper will include an analysis of a feminist poem by a South African feminist scholar to highlight the relevance of the ideology of feminism in combatting epistemic violence.
INTRODUCTION TO THE PRETORIA STUDENT LAW REVIEW: SPECIAL EDITION ON THE DECOLONISATION AND AFRICANISATION OF LEGAL EDUCATION
Authors: Lansink Annette , Jegede Ademola Oluborode
Published: July 2021

This special edition of the Pretoria Student Law Review (PSLR) is devoted to papers presented at a Conference on Decolonisation and Africanisation of Legal Education hosted by the University of Venda and the South African Law Deans Association (SALDA).1 This was the third event on decolonisation and Africanisation under the umbrella of SALDA in the period 2016 to 2019 and the first devoted to law students.
HISTORICALLY WHITE UNIVERSITIES AND THE WHITE GAZE: CRITICAL REFLECTIONS ON THE DECOLONISATION OF THE LLB CURRICULUM1
Authors: Letsoalo Mankhuwe Caroline , Pero Zenia
Published: July 2021

The (most recent) call for curriculum decolonisation came at the height of student protests such as #feesmustfall and #afrikaansmustfall. In the University of Pretoria’s Curriculum Transformation Framework document, the University identified four drivers of curriculum transformation, namely, responsiveness to social context; epistemological diversity; renewal of pedagogy and classroom practices; and an institutional culture of openness and critical reflection. The content of these drivers mirror what is needed to engage in decolonisation of curricula. In the spirit of these protests that led to the conceptualisation of decolonised higher education, the authors of this article critically reflect on the institutional landscape of historically white universities. The authors employ the term ‘white gaze’ to highlight how historically white universities respond to calls for decolonisation, often substituting this call with transformation. The purpose of this article is to re-contextualise the need for decolonisation at historically white universities.
DECOLONISING LEGAL EDUCATION IN SOUTH AFRICA: A REVIEW OF AFRICAN INDIGENOUS LAW IN THE CURRICULUM
Authors: Mawere Joshua
Published: July 2021

The student demonstrations in universities, which began in 2015, demanded the decolonisation of higher education. The demands included free education and a decolonised curriculum. In the field of law, the demand is anchored in changing the law curriculum. The central issues accompanying the demand are the status of indigenous law, legal history, concept of law, how law is taught and the role of law in African societies. The article examines the necessity of decolonising legal education in relation to the curriculum and the teaching of law in South African universities. The article adopts a doctrinal approach to assess the need to transform the curriculum. The article is grounded in the theory of Afrocentricity in a bid to revive the African paradigm and to examine legal epistemology in post-colonial South Africa. The argument developed in this article is that the legal education system has not significantly been decolonised since 1994. Arguably, the education system is founded on European theories and systems, hence difficult or impossible for the students in Africa to relate. This article recommends that a new curriculum that reflect laws, principles and customs of the African people must be introduced in the South African legal education. Institutions are also encouraged to take positive steps to decolonise legal education and end eurocentrism.
‘I’VE CHANGED’ SAYS SOUTH AFRICAN LAW: HAS THE JUDICIARY OPENED UP TO BLACK WOMEN LAWYERS?
Authors: Makhaye Cebolenkosi
Published: July 2021

Historically, South African law and legal culture has been an exclusionary field towards a number of different groups of people. One of the most glaring of these exclusions is that of black women lawyers. South African law and politics have claimed to have changed, but one still finds spaces that have not quite had the substantial kind of change that would be in line with the transformative nature that our constitution demands or at the very least, there is still plenty of room for improvement. The 2017/2018 statistics from the Law Society of South Africa (LSSA)1 paints a clear picture of the past and current legal spheres. I will also rely on some sentiments that I have read from a number of black women scholars in legal practice to give the perspective to what working as a black women lawyer in South Africa is like.
SEXUAL ORIENTATION AND GENDER IDENTITIES (SOGI) LAW AND SOCIAL CHANGE
Authors: van der Linde Chanelle
Published: July 2021

It has been widely acknowledged in the realm of research that Africa is historically a diverse continent for gender identities and sexual orientations and practices. Research conducted through various disciplines depicts accounts of unique bond-friendships and dynamic gender roles that existed openly prior to the introduction of colonial discriminatory laws. With variation in social and legal positions with regard to LGBTQIA+ rights and recognition over time and space, the question is postulated of how the natures of social and legal change affects the relationship between these positions. The adoption of Queer Theory, as a lens of analysis, does not dichotomise the relationship of social and legal changes through a riddle of which came first, but rather acknowledges the domination of prevailing anti-LGBTQIA+ sentiments in colonial governments through the mechanism of law. The embedment of queer phobia into social institutions allowed for its continued existence postindependence through the shift in perspectives and attitudes toward LGBTQIA+ persons by individuals in society. Though individuals and collectives continue advocating for the recognition and realisation of legal rights and protections for LGBTQIA+ persons throughout the continent, varying legitimisation has only been seen in limited countries such as South Africa, Botswana, and Angola.
GAME OF THRONES: THE BATTLE OF THE MPHEPHUS
Authors: Tshikota Gudani
Published: July 2021

South Africa, like the whole of Africa and many parts of the world, was not immune to Western civilisation, and this ‘civilisation’ was accompanied by the imposition of Western ideas, laws, cultures and traditions, and many other attributes of conquest.3 African law was infiltrated and distorted beyond recognition, resulting in the origination of ‘official’ customary law, which remains stagnant and incapable of accounting for the needs, values and circumstances of an ever-changing society.4 This study looks at the battle for the Vhavenda kingship/queenship between Masindi Mphephu (hereafter ‘Masindi’) and Toni Peter Mphephu (hereafter ‘Toni’) and contends that the Supreme Court of Appeal’s decision was correct in light of the values enshrined in our constitutional democracy.5 This is done by looking at the decision pertaining to the principle of male primogeniture in Bhe and Others v Khayelitsha Magistrate and Others (hereafter ‘the Bhe case’) and succession in Shilubana and Others v Nwamitwa (hereafter ‘the Shilubana case’).6 Throughout this study, the adoption of ‘living’ customary law by judicial systems and the legislature is proposed as a catalyst towards the transformation of customary law.7 Finally, this study contends that the pronouncement of Masindi as queen would be a step towards the transformation of customary law.
INTERNATIONAL LAW RULES RELATING TO MIGRATION ARISING FROM RISING SEA-LEVELS
Authors: Kgomosotho Keketso G.
Published: July 2021

Global sea-levels have been on the rise for the past three centuries. Recent trends show that sea-levels rose by at least 20 centimetres (cm) in the 20th century alone.1 At current global greenhouse-gas emission levels, it is estimated that sea levels will continue to rise by a further 77 cm by 2100. Sea-level rise, a gradual rise in the volume of the ocean, occurs when there is thermal expansion of water levels which is caused by an increase in ocean temperatures, coupled with the gradual melting of glaciers and other frozen water reserves. If global predictions are realised, the rise in water levels will lead to the partial (and at time complete) inundation and depopulation of State territories — specifically low-lying and small island States.2 This rise in sea water levels is a direct result of climate change, and has presented a number of international law challenges, including to areas of law dealing with the continued statehood of inundated States; the law of the sea; and the protection of persons migrating as a result of sea-level rise. The paper will draw focus from this latter issue. The paper begins by providing context to the discussion, specifically, drawing connections between the gradual rise in water levels, and migration. This first section will show that the further the habitability of low-lying and coastal areas is negatively impacted by rising water table, the human rights implications, too, ascend to greater levels of severity and urgency. Next, the paper will provide an overview of existing rules of international law that bear relevance to migration induced by rising sea-levels, while the last section proposes, as starting point, a number of general rules and principles of international law to inform the development of a joint and separate international response to the challenges presented by migration in the context of rising sea levels. Finally, the paper will offer some concluding remarks
CONSUMER OVER-INDEBTEDNESS LANDSCAPE: THE OBLITERATION OF A CREDITOR-ORIENTED APPROACH THROUGH THE DEBT INTERVENTION PROCEDURE?
Authors: Shange Khalipha
Published: July 2021

As observed by Coetzee and Roestoff, the South African natural person insolvency system remains creditor oriented and as a ramification many over-indebted consumers are excluded from access to debt alleviation measures.1 There are three debt alleviation measures available to natural persons in South Africa, of which only the sequestration procedure under the Insolvency Act provides an over-indebted consumer with a discharge from pre-insolvency debts.2 However, the principal requirement of proving financial advantage to creditors restricts access for many debtors as they do not have sufficient disposable assets to satisfy the requirement.3 The other two debt alleviation measures are the administration order provided in the Magistrates Court4 and debt review under section 86 of the National Credit Act.5 These measures have been heavily criticised for their reliance on the courts and for only providing debt repayment plans with no provision for discharge.6 This article commences with a detailed discussion of the debt intervention procedure provided by the 2019 National Credit Amendment Act.7 Thereafter, the New Zealand insolvency system is discussed. The purpose is to benchmark the debt intervention procedure against the New Zealand insolvency system in order to ascertain if it obliterates a creditor-oriented approach.
A COMPARATIVE ANALYSIS OF THE PROPOSED MANDATORY NATURE OF EMPLOYMENT LEGISLATION AND ITS INTERACTION WITH THE CHOICE OF LAW OF AN INTERNATIONAL CONTRACT
Authors: van der Merwe Marcia
Published: July 2021

In an ever-changing world characterised by globalisation there has been a steep increase in employment contracts with an international character. This may lead to a conflict of laws whereby a forum court is confronted with the application of either the forum’s domestic laws or those of a foreign judicial system. In these cases we are confronted with the interaction between party autonomy and the limitations placed on the exercise thereof. The international legal community has yet to reach a consensus on the requirements of the exercise of party autonomy, and thus there are no ‘supra-national laws’ governing party autonomy.1 Only in extraordinary circumstances will the forum court divert from the proper law of the contract and in doing so veer from the principle of freedom to contract.2 This is illustrated in Louks v Standard Oil Company of New Jersey3 where Cardoza CJ stated so congruously in his obiter that ‘we are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home4.’ This article will endeavour to give an overview of the interaction between the proper law of a contract as chosen by the contracting parties in an international contract and the mandatory rules of a forum court that may be under consideration. This article will undertake a critical comparison and analysis of the methods and reasoning applied by the courts in the jurisdictions of New Zealand, the United Kingdom and South Africa in respect of the mandatory nature of employment legislation and its interaction with the choice of law of an international employment contract. This will be done in reference to a specific company, Cathay Pacific, its employment contracts and the court cases that flowed from the choice of law clause in the contracts between Cathay Pacific and its employees in both New Zealand and the United Kingdom. A discussion of the possible repercussions of such a clause in a South African legal context will follow.
PROPERTY RIGHTS AND THE BASIC STRUCTURE OF THE CONSTITUTION: THE CASE OF THE DRAFT CONSTITUTION EIGHTEENTH AMENDMENT BILL
Authors: van Staden Martin
Published: July 2021

The land reform debate in South Africa has always been as contentious as it is controversial. Up to now, however, it has not reached the intensity of bringing about changes to South Africa’s fundamental law. In February 2018, Parliament resolved in favour of adopting an amendment to the Constitution that would allow government to expropriate private property without being required to pay compensation.1 This began a process that eventually culminated in the December 2019 publication of the draft Constitution Eighteenth Amendment Bill. This is the first time since the Constitution was enacted that an amendment has been introduced to change a provision in chapter 2, in this case section 25. The basic structure doctrine is a judicial doctrine that features most prominently but not exclusively in the constitutional law of India.2 The doctrine’s essence is that constitutional amendments, despite complying with the formal requirements for amendment set out in the constitutional text, might still be struck down by a court because the amendment offends the constitution’s foundational principles, its identity, character, or logic — its basic structure.3 In 2005, Devenish wrote that the basic structure doctrine has been implicitly recognised by the Constitutional Court as applicable in South Africa, but that ‘the doctrine is waiting in the wings, since, should certain circumstances and a crisis situation arise, the Constitutional Court could invoke its application’.4 At the time of Devenish’s writing, there was no pending amendment of the Bill of Rights, unlike today. In this paper, I briefly summarise the amendment procedure set out in section 74 of the Constitution, and the process that has taken place between February 2018 and June 2020. Thereafter, I briefly discuss the basic structure doctrine and its potential application in South Africa. Finally, I consider whether the basic structure doctrine could be employed as a viable challenge to the draft Constitution Eighteenth Amendment Bill. The question that is inevitably considered: Has the crisis, that Devenish referred to, arrived?
WORKERS OF THE WORLD, UN-UNITED: A DISCUSSION THROUGH A GENDERED LENS ON WHY STRONGER PROTECTION OF WORKERS IN THE INFORMAL ECONOMY WILL BETTER EQUIP SOUTH AFRICA TO COPE WITH LABOUR MARKET CHANGES OF THE FOURTH INDUSTRIAL REVOLUTION
Authors: Maharaj Shaniaé
Published: July 2021

This article will investigate the readiness for labour legislation to cater for the Fourth Industrial Revolution (4IR) by comparing the structure of the current labour market and that of the future, through a gendered perspective. There are two core protections that underpin employee entitlements and rights. The first is the formal recognition of an individual as an employee or worker, which is often formalised through an employment contract. Many South Africans are engaged with work in the informal sector which do not make them privy to most of those rights and entitlements. This is problematic when considering how vulnerable these individuals already are, and that black women are concentrated in this sector. The inadequate protection of informal workers is going to pose challenges for South Africa’s ability to cope with changes brought on by the Fourth Industrial Revolution and the projected shift towards labour flexibility and casualisation. The second is collective bargaining, which empowers other rights to be realised. Collective bargaining is framed through the use of trade unions as its primary mechanism. While they may have been relevant at the time of the Labour Relation’s Act’s (LRA) inception, they have become an inappropriate medium to further workers’ rights and are projected to continue to lose members in the near future, as organisation cannot happen as effectively with a decentralised workspace and an incoherent internal firm structure. I will conclude the piece by offering recommendations which encourage more progressive labour legislation that takes into account both the changing nature of work and the specific interests of women.
DISMANTLING THE STATUS QUO: PROHIBITING UNFAIR DISCRIMINATION ON THE GROUNDS OF POVERTY UNDER CAPITALISM
Authors: Surajpal Sohela
Published: July 2021

The first part of this paper discusses the approach of the South African courts to socio-economic rights, arguing that it has resulted in limited progress in alleviating poverty. The Equality Court’s incorporation of equality law into socio-economic enquiries in Social Justice Coalition v Minister of Police could strengthen the case of claimants and override certain factors that cause the courts to defer to the executive, thus compelling the State to provide more immediate relief. This section also attempts to apply the prohibition of discrimination on the grounds of poverty to commercial entities. By understanding discrimination as the denial of advantages or opportunities, the argument that the economy and private companies depend on discriminating against the poor to function is advanced. The second part of the paper discusses the requirement that discrimination be unfair in order to be prohibited. It assesses the likelihood of courts finding that budgetary constraints and profit incentives are legitimate purposes served by discrimination on the grounds of poverty. Finally, the last part of this paper discusses whether antidiscrimination law is an appropriate tool for the eradication of poverty. Several criticisms of transformative constitutionalism, human rights discourse and anti-discrimination law are engaged with to show that anti-discrimination law, as it currently exists, will at most target incidents of poverty-based discrimination using moderate forms of relief that allow for the continuance of an oppressive capitalist order rather than creating systemic change. The courts will have to make radical decisions, which depart from conservative South African legal culture if the decision in Social Justice Coalition v Minister of Police is to have far reaching impact.
WHEN LIFE GIVES YOU LAW, MAKE LEMONADE: EXPLORING THE ‘LEGALISED’ OPPRESSION OF BLACK WOMEN IN THE UNITED STATES OF AMERICA AND SOUTH AFRICA AND THEIR MUSICAL RESPONSE THERETO
Authors: Khoza Thandeka N.
Published: July 2021

‘Oppression’ can take a great number of forms, depending on its context, purpose and subjects. The forms of oppression which are the subject of this article are racial prejudice and patriarchy. These two forms of oppression are relevant here to the extent that they are imposed on Black women. Within this context, the struggle of Black women is twofold, in that it is comprised of the Black person’s struggle, against racial prejudice, as well as the woman’s struggle, against patriarchy. Additionally, this struggle, against racial prejudice and patriarchy, is also twofold in the sense that it exists in society and is also condoned by the law. Therefore, the racial prejudice will be discussed as it relates to the Blackness of Black women and the patriarchal prejudice will be discussed as it relates to the ‘womanness’ of Black women. This paper, then, recalls the racial and patriarchal oppression of the Black woman by looking at the said oppressions as they have existed in society as well as some ways in which the law has aided or reinforced them. Once the oppressions, their existence and legal enforcement, have been outlined, this paper then visits the topic of music as a documentation of and escape from the experience of these oppressions by Black women. It should also be noted that, due to similarities which will be outlined in the article, the focus of this paper is squarely on the experience of the Black woman in the United States of America (USA) and South Africa. Therefore, some racially prejudicial laws will be sampled from these countries. Furthermore, some music by Black female artists from both countries will be sampled too. Above all, this article is presented as a reminder of sorts that the law does not exist in a vacuum — it applies to, has consequences for and is experienced by people.
TRANSFORMATIVE ADJUDICATION AND THE PLACE OF ADMINISTRATIVE LAW IN SOUTH AFRICAN JURISPRUDENCE: ABSA BANK LIMITED v PUBLIC PROTECTOR
Authors: Twala Tshepo , Mogadime Mpho
Published: July 2021

The primary purpose of administrative law is to regulate the exercise of public power and the performance of public functions, which is informed by the constitutional principle of the rule of law.1 This paper argues that what underlies this objective in post-1994 mainstream transformation jurisprudence is a transformative approach in interpreting the Constitution,2 by which all exercises of power must be justified, including judicial interpretations.3 Klare coined this approach as ‘transformative constitutionalism’.4 This paper critically examines the decision in Absa Bank and Others v The Public Protector and Others (Absa case)5 concerning the High Court’s approach to adjudication in the administrative law and the role of a transformative constitutionalist approach to adjudication. The first part of this paper contains a brief exposition of the place of administrative law in the South African legal regime. In the second part of the paper, we provide a summary of the Absa case. We then provide a focussed discussion on procedural fairness as a cornerstone of good governance with respect to administrative conduct in the third section of the paper. The fourth part of the paper sets out what a transformative approach to adjudication is, including a discussion on how the Court in Absa dealt with the standard of fairness in relation to the Public Protector’s conduct from a transformative constitutionalist lens, on the one hand, and a critique on the Court’s application of the established principles of administrative law, on the other hand. Lastly, we conclude with recommendations in response to the Court’s seemingly split approach to transformative adjudication.
FALLING THROUGH THE GAPS OF THE REGISTRATION CONVENTION: A NEED FOR REVISION
Authors: Katsiginis Alexia
Published: July 2021

In this paper, I address the areas of law that have been left unregulated by the Registration Convention, as well as the need to develop the treaty using the cornerstones of space law as a foundation for such development. My first enquiry relates to the definition of a space object and the implications of limiting the treaty’s scope to ‘objects launched into earth’s orbit or beyond’. Further, to what extent can this definition accommodate the registration of objects that are constructed in outer space? My second enquiry focuses on a lacuna that is largely unaddressed by space law in general and does not only lack in the Registration Convention. Currently, there is no system regulating the status of objects that are either wholly or partly constructed using lunar resources. It is questionable whether such a construction would pass the environmental threshold required by the due regard principle. However, should such a construction be deemed lawful it is uncertain to what extent a state may lawfully exercise jurisdiction over such an object without its authority being deemed an act of national appropriation. In this paper I will not attempt to creatively interpret available space law in order to accommodate missing regulations. Instead, I rely on the core of space law — represented by the Outer Space Treaty — to provide a contextual backdrop against which the above questions can be answered or highlighted as incomplete.
SEQUESTRATION OF THE INSOLVENT ESTATE: THE ‘ADVANTAGE TO CREDITORS’ REQUIREMENT
Authors: Olivier Cherrie
Published: July 2021

This essay deals with the ‘advantage to creditors’ requirement imposed by the Insolvency Act, in South African law. This essay is divided into four parts. Firstly, the requirement will be examined in order to establish the objective it aims to achieve. It will then go on to describe the various ways in which the requirement is implemented during the sequestration process in order to achieve this objective. The second part will discuss how courts interpret the relevant provisions with reference to case law. In the third part, South African insolvency law will briefly be compared to foreign insolvency law in order to raise some potential concerns about the emphasis on the ‘advantage to creditors’ requirement in our law. Finally, with due regard to the current legal institutions and proposals for legal reform in South Africa, conclusions will be drawn as to the necessity of revisiting the scope and implementation of this requirement.
THE DEVELOPMENT OF THE CONCEPT OF CONSTITUTIONAL DAMAGES
Authors: Grimm Wesley Martin
Published: July 2021

Any question dealing with the development of law requires, by its very nature, a discussion of sometimes factually distinguishable but legally interwoven points; thus focus is placed on the law of constitutional damages. Every effort is made to present cases in a manner that solidifies an argument of progress and refinement in relation to the concept of constitutional damages as a remedy. The anchor of this work is the Constitution. Fose, the locus classicus on constitutional damages, introduces the notion of constitutional damages as a remedy in South African litigation and is threaded throughout this work. Strong reliance is placed, inter alia, on the decisions of Kate, Modderklip, Dikoko, and Mboweni. The thrust of my argument is that the remedy of constitutional damages should only be relied upon when most appropriate and practical to ensure the vindication of constitutional rights in light of the facts of a particular case and alternative legal remedies.