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The South African government is navigating many basic municipal service delivery challenges, including a growing electricity supply deficit. Eskom Holdings SOC Limited, the state-owned power utility, is struggling to generate and supply a stable and uninterrupted flow of electricity through its grid system. The inadequate generation capacity results in rotating power outages, known as loadshedding, which occur when demand surpasses generating capability. This fundamental service delivery challenge, in conjunction with South Africa's climate change responses, including the decision to work towards energy efficiency, renewable energy and cleaner energy or a "just transition" from coal to clean energy, encourages many South Africans who have the necessary means to invest in off-grid energy solutions that operate alongside and at times independently of Eskom's grid. This paper considers from a legal perspective how and to what extent legislation on electricity supply and municipal by-laws empower household consumers to fulfil their right to electricity by going off-grid. The paper ultimately considers the import of this on South Africa's energy governance framework for electricity provision in the country. [ABSTRACT FROM AUTHOR]

Legal aid is needed in South Africa as one mechanism for poor South Africans to realise their legal rights and to use the law as a vehicle for positive social change in a grossly unequal society in which deep poverty is rife. However, simply having a legal aid service provider is insufficient if the quality of such services is not satisfactory. But how can high quality legal services be ensured? This paper considers how different forms of legal aid service provision can be effectively monitored and assessed to ensure that satisfactory standards of legal aid work are delivered. Categories of "legal aid" (broadly construed) which are considered are legal NGOs, including university law clinics, the state's Legal Aid South Africa telephonic advice, and pro bono work by private lawyers. Separate research has focussed on the need for much improved coordination between legal service providers to promote co-operation among legal aid services. The next step is to ensure that such coordination leads to quality services and promoting quality control mechanisms which are appropriate and which can be considered best practice. This paper analyses and discusses this next step. If legal aid is not of an adequate standard or quality assurance is not in place, the legal aid is not serving a positive function. The paper considers viable means for vetting the quality of these free legal services in a South African context, including telephonic legal advice in the Covid era. It suggests mechanisms to promote high-level free legal service provision by assessing the quality of such services. Legal aid quality control methods abroad were analysed to serve as an indicator of the options used in this regard in those jurisdictions. The question to be answered is what quality control measures are most apposite in the South African legal aid arena. [ABSTRACT FROM AUTHOR]

Digital financial services (DFSs), being financial services accessed and delivered through digital channels, have grown rapidly in South Africa as well as globally. The adoption of the technology for DFSs has led to an increase in financial inclusion, enabling more individuals and businesses to have access to useful and affordable financial products and services, where payments, savings, credit, investment and insurance are included. Through the Financial Sector Regulation Act 9 of 2017 financial inclusion was statutorily enacted for the first time. The regulators are now empowered to insist that financial institutions take proactive steps to expand financial inclusion and can take the necessary steps to enforce these powers. One of the factors that have an influence on whether consumers will adopt DFSs is consumers' perspectives of DFSs. Lack of information and knowledge combined with the cost of data negatively influences the adoption of DFSs. The transfer of information to unbanked people in South Africa with regards to DFSs should be enhanced by the state as it strives to improve financial literacy. DFSs are susceptible to financial crimes like fraud, money laundering, terrorist financing, bribery, corruption and market abuse. The challenges that threaten the interests of customers should be addressed by stricter information verification methods when transacting with clients online. Technological detectors and digital identification should be used more effectively to verify customers and to alert authorities to suspicious transactions. Financial institutions might consider authenticating online transactions by thumb-print or a voice recognition system. This paper emphasises that because of the prospects of greater and deeper financial inclusion in South Africa, the use of DFSs has to be improved and developed and the challenges have to be constructively addressed to unleash the true potential thereof. [ABSTRACT FROM AUTHOR]

One of the most modern inventions of financial technology (FinTech) since after the global financial crisis of 2008 is the crypto or virtual currency/asset. Since the creation of the first cryptocurrency, the Bitcoin, in 2009, it is estimated that over five thousand variants of the Bitcoin and other cryptocurrencies have emerged. Virtual currencies have become widespread across the globe but their legal status and uses in various countries have remained uncertain. They have been variously classified as currencies, securities, properties, assets, commodities and tokens, and used as means of exchange but are not legally recognised as legal tender. In many jurisdictions their emergence was greeted with scepticism and express or tacit rejection by financial and securities markets regulators, but over time, owing to their increasing popularity, characteristics, positive and negative potentials, there has been a gradual shift towards their formal recognition and regulation. Regulatory authorities in many countries are now grappling with designing appropriate policy and regulatory framework for the crypto phenomenon. This paper interrogates the current legal status and efforts to regulate cryptocurrencies in two leading African nations, Nigeria and South Africa, and highlights the challenges of designing an appropriate regulatory framework for this enigmatic technology. The paper adopts the doctrinal legal research methodology, employing the descriptive, analytical, and comparative approaches. It follows a structured review and analysis of relevant extant legislation on currencies and securities in the countries to ascertain whether they cover cryptocurrencies. It then compares the current position of the law on the subject in the two countries. Bearing in mind that it may not be possible to totally ban dealing in cryptocurrencies, the paper concludes that regulation has become imperative. Drawing from the position on the subject in more developed nations, the United States of America (US) and the European Union (EU), this paper proposes a model of regulation of virtual currency not only for Nigeria and South Africa but also for other African countries. [ABSTRACT FROM AUTHOR]

South Africa's controlled foreign company ("CFC") rules were enacted more than two decades ago before most of today's business models existed. These are anti-avoidance rules that ensure the South African taxation of profits diverted offshore by South African residents. In terms of the CFC rules, the profits of a non-resident company may also be subject to tax in South Africa at the hands of its South African resident shareholder if such non-resident company is considered to be a CFC. Advances in technology developments and the use of information communication and technology ("ICT") have given rise to what is referred to as the digital economy. The term refers to economic activities hinged on the use of ICT and the internet. Digitalisation has made it possible for a business to carry on economic activity without the need for a multitude of offices, staff, equipment, and other resources. As a result, new business models like Uber and Shien have emerged. This paper argues that the current South African CFC rules have not kept pace with these new business models and do not effectively regulate the new business models and the digital economy. This paper recommends that the CFC rules be updated to address the digital economy and new business models by amending the rules, incorporating the provisions of Electronic Communications and Transactions Act 25 of 2002 into the rules, using countryby- country reporting, and even considering implementing a regime alternative to CFC rules. [ABSTRACT FROM AUTHOR]

In 2014 the South African Law Reform Commission (SALRC) released a Discussion Paper on the practice of ukuthwala. The Discussion paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill). The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including because of ukuthwala. In view of the SALRC's proposed Prohibition Bill, this paper investigates whether South Africa should criminalise ukuthwala or not. The paper also examines the advantages and disadvantages of criminalising breaches of ukuthwala in the protection of women and girls affected by the practice by drawing upon the field research findings from the community where the S v Jezile 2015 2 SACR 452 (WCC) case originated. Among other findings, the field research show that the practice of ukuthwala is deeply rooted in the communities where it is still prevalent to the extent that the approach taken by the Prohibition Bill, expecting the victims to report their own parents or family members to law enforcement agents, might force the practice to go underground. Ultimately, we suspect that this might make it more difficult to protect women and children's rights violations associated with ukuthwala. We therefore recommend that to effectively address the malpractices surrounding ukuthwala, the process of law reform look at the elements of ukuthwala, the procedure that is followed, appreciate the cultural significance of the practice, as well as understand the merits and demerits of the customary delictual claims that are already used by communities where processes of the practice have been breached. In this way, communities will be more receptive to any government's efforts that are aimed at addressing forced and child marriages linked to ukuthwala. In addition, we submit that unless government prioritises awareness campaigns into the communities that are going to be affected by the proposed law reform, such law, will again be what Himonga calls "paper law". [ABSTRACT FROM AUTHOR]

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa - with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence. Technology has become an indispensable part of modern life. In particular, the Internet has facilitated new forms of business enterprise, and shifted basic communication norms. From a legal perspective, technology has presented several novel challenges for courts and legal practitioners to deal with - one of these key challenges relates to electronic evidence and in particular the application of the hearsay rules to the digital environment. The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence, and certain academic analysis has revealed inefficiency in the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence. With the pervasive and burgeoning nature of technology, and with the Internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in future, and hearsay electronic evidence in particular will play an increasingly important role in years to come. Consequently, part one of this article will consider the key definitional concept in relation to electronic evidence - data messages - and examine whether the definition should be revised. In addition, part one of this article will answer two further critical questions posed by the South African Law Reform Commission in relation to data messages and hearsay evidence, namely: should a data message constitute hearsay? And, how should one distinguish between documentary evidence and real evidence in the context of data messages?. [ABSTRACT FROM AUTHOR]

In this paper my thought experiment leads me to posit that South Africa's environmental governance often results in what I term "hollow environmentalism". This term describes the inevitable long-term outcome of promulgating laws and policies that are idealistic and seem symbolic and that at times fail to achieve their intended objectives or environmental promise. On a narrower scale, hollow environmentalism can also manifest when such symbolic environmental laws and policies lead to judicial decisions that lack substantive ecological justifications, perhaps even resembling symbolic judgments. I substantiate this argument through four key considerations. I commence with a reality check on environmental governance, emphasising that the state is not a neutral actor, necessitating closer scrutiny of state decisions. This leads me to the conclusion that governance stands at a critical juncture. I argue that the symbolic nature of our environmental laws, broadly speaking, often makes it challenging for the state to fully meet the lofty ideals it presents, thereby also complicating court decisions in these matters. Next, I align my thoughts with recent literature on adjudication in the context of the climate crisis. This literature stresses the need for courts to be bold and innovative in their judicial roles, given the precarious nature of stabilising environmental disputes. In the penultimate section I bring the discussion to a close by suggesting two interconnected possibilities to address hollowness in the face of climate change: "sunsetting" and "substitution". [ABSTRACT FROM AUTHOR]

This contribution examines the implications of the "national security provision" in terms of section 18A of the Competition Act 89 of 1998 as inserted by section 14 of the Competition Amendment Act 18 of 2018. The effect of section 18A is that it confers upon the President of the Republic of South Africa power to appoint a national security committee whose mandate is to investigate mergers involving a foreign acquiring firm and determine whether such a merger would pose a threat to the "national security interests". The contribution highlights the possible challenges that the insertion of section 18A may precipitate. It argues that while the protection of national security interests is imperative, it is however not the goal of competition policy to regulate broader national security policy. In making the argument, cognisance is taken of the fact that where a gap exists in policy, legislative amendments may be used as stopgap mechanisms. The paper investigates the treatment of national security interests in foreign jurisdictions in a bid to establish whether the provision is in line with international best practice and whether any lessons may be drawn therefrom. [ABSTRACT FROM AUTHOR]

Although the accounting definition of assets contemplates intangible, abstract assets such as those embodied in intellectual property (IP), South African company law largely views IP as a legal and not a business asset. This paper tentatively suggests an approach that uses artificial intelligence (AI) to mitigate weaknesses in the South African patent law relating to the absence of patent searches and examinations. It is hoped that using AI will enable the filing of quality patents that satisfy the prescribed patentability criteria. High-quality patents will allow companies to accumulate patents as corporate assets. The approach is based on the algorithmic use of AI technologies such as machine learning, natural language processing, deep learning alongside the Internet of Things, and IP analytics to strengthen South Africa's IP system and create asset value for corporations. The paper recommends using the proposed AI technologies by companies and the Patents Office to enable the filing of high-quality patents, which will lead to the accumulation of corporate assets in the form of patents. The methodology is doctrinal, and the paper relies on recent literature on IP and AI, South African law, case law and examples drawn from studies conducted in other countries. [ABSTRACT FROM AUTHOR]

The active participation of Black South African women in the corporate sector is essential for the achievement of equity and diversity. Since 1994 the sector has failed to promote black women into managerial positions despite the existence of the Employment Equity Act 55 of 1998 that requires the equitable representation of previously disadvantaged groups on all occupational levels. Conversely, the managerial positions in the South African corporate sector continue to be dominated by white males and little effort is being made to achieve equity. The paucity of black women persists in the corporate sector during a period in which South Africa, like many other countries, is preparing itself for the fourth industrial revolution, which has broad implications for the sector. Black women are underrepresented in the emerging technological environment in South Africa, and this imbalance is further perpetuating the exclusion of black women from managerial positions. This paper argues that the emerging technological environment presents an opportunity for the corporate sector to reflect on the training needs of Black women and prioritise technology in its quest to achieve equity. An increase in the number of black women with technological skills would enhance their prospects of occupying meaningful managerial roles. The corporate sector in South Africa is expected to comply with progressive statutory interventions and policies to advance women in the emerging technological environment who have the right qualifications, experience, and competency to fill the managerial positions from which they were previously excluded. In this paper we examine and analyse the challenges which are hampering the progression of black women into managerial echelons in post- 1994 democratic South Africa. In order to present an objective and balanced view, we also present the strides being taken by some corporates (very few of them) to address the problem of the obstacles to the advancement of Black South African women to managerial positions. [ABSTRACT FROM AUTHOR]

This paper discusses the challenge of the misappropriation of retirement fund assets by trustees, fund asset managers and retirement funds' administrators. It demonstrates that retirement fund members lose substantial retirement benefits due to the illegal and unlawful conduct of those who manage and administer retirement funds. It evaluates whether the South African legislative framework offers retirement funds and their members adequate protection from activities that may compromise the delivery of the pension promise such as: mismanagement; fraudulent activities; gross negligence; and the outright looting of retirement fund assets. In particular, this paper illustrates that the law in South Africa does not deter would-be wrongdoers from acting in a manner that may compromise the benefits expected by retirement fund members when they exit their funds. It advocates the adoption of adequate preventative legislative measures that would make it difficult for anyone to act in a manner that would compromise retirement fund members' benefits in South Africa. [ABSTRACT FROM AUTHOR]

A photograph taken by a monkey is in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey, named Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belongs to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of Ninth Circuit a request for an appeal before a panel of eleven judges of the appellate court was denied. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on the authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg's six principles for testing authorship to test the authorship of photographs under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of and ownership of the copyright in a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for the purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage the conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts. [ABSTRACT FROM AUTHOR]

The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts. This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms. Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism. While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern. [ABSTRACT FROM AUTHOR]

This paper analyses the dominant approaches to statutory interpretation through a historical lens. It argues that for most of South Africa's history the methods of interpretation were twisted in order to give effect to the intentions of the legislature. This approach to interpretation has now been discarded into the waste bin of history, and intentionalism has been replaced with contextualism. Or so we are told. The judgment of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) has been hailed as the new, settled approach to interpretation, with the Constitutional Court endorsing Endumeni on numerous occasions. But it appears from both the judgments of the Constitutional Court and those of other Courts that intentionalism is not yet dead. This paper argues that the reason for this is because Endumeni has not provided clarity to the process of interpretation that it proclaims to do. [ABSTRACT FROM AUTHOR]

The Constitution of Lesotho, 1993 has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism. [ABSTRACT FROM AUTHOR]

This special edition consists of a selection of contributions delivered during a conference "Towards an integrated approach to the interpretation of legal documents: contracts, wills and statutes", hosted by the University of the Western Cape, on 23 March 2018. The aim of the conference was to take stock of the state of legal interpretation in South Africa five years after the watershed judgment in Joint Natal Municipal Pension Fund v Endumeni Municipality. The papers in the special edition provide clarifications, contestations and applications of the Edumeni approach to the interpretation of legal documents. [ABSTRACT FROM AUTHOR]

Although the Protection of Personal Information Act 4 of 2013 (POPIA) wholeheartedly adopts the command-and-control features of the EU General Data Protection Regulation (GDPR), POPIA does not include many of the collaborative governance mechanisms in the GDPR. POPIA dilutes the accountability requirements in the GDPR. It rarely requires responsible parties to generate or keep documentation and there is no equivalent of European Data Protection Impact Assessments in the South African Act. This affects the regulation of automated processing that involves profiling. The European system of certifications is also not included in POPIA. POPIA includes a system of codes of conduct but even they have a more peremptory nature. The absence of collaborative governance mechanisms in POPIA constitutes a missed opportunity to build a culture of enhanced data protection in South Africa. The Information Regulator has the task of giving many exemptions and prior approvals under the Act. The newly constituted Information Regulator will find itself exposed as it faces a particularly difficult mandate. [ABSTRACT FROM AUTHOR]

Groundwater, which is water that is found underground, is less susceptible than surface water resources to evaporation, and thus offers resilience against the impacts of climate change. Many South African cities, communities and farmers depend on groundwater for domestic or other socio-economic purposes. This implies that groundwater resources which are currently or potentially utilisable should be identified, and suitable legal measures should be implemented to protect these resources from potential risks of harm or damage posed by anthropogenic activity. This article firstly evaluates the effectiveness of the country's existing regulatory framework to effectively protect South Africa's groundwater resources and finds that the framework can be improved upon significantly. Secondly, it explores regulatory opportunities within the existing legal framework to strengthen South Africa's groundwater governance regime, including making use of land-use planning instruments to facilitate the implementation of groundwater protection zones. [ABSTRACT FROM AUTHOR]

This contribution is an investigation into the role of implicit (as opposed to explicit) biases in judicial rulings by examining the judgment of Chetty J in Mbena v Minister of Justice and Correctional Services 2015 4 All SA 361 (ECP). Implicit bias refers to prejudice on a visceral level, namely unconscious bias, of which the bearer, to wit the judicial officer, is unaware. I suggest that exploring implicit bias in judicial rulings in the context of South Africa's harsh stigmatising shaming culture driven by incarceration as its dominant sentencing regime, will introduce a valuable window in identifying, as well as possibly illuminating and eliminating, unjustified and harmful biases. In this contribution I specifically focus on the generalised bias against ex-offenders in South Africa's harsh stigmatising shaming culture (which I distinguish from integrative shaming cultures found in Japan, China and many African societies) which attitude perpetuates the marginalisation, stigmatisation and discrimination of offenders which exceed their courtsanctioned punishment. I attempt to outline the reasons as to why the isolation and elimination of social biases of this nature are important since, in the view of many criminologists but particularly John Braithwaite, stigma is counter-productive and criminogenic as it leads to enhanced recidivism rates. To this end, I analyse the salient features of the case within a broad social context (including a consideration of phenomena such as the prison-industrial complex on South African soil) which exceeds a narrow legal framework. My roadmap for the paper encompasses a consideration of the salient, albeit disputed, facts of the case with a view towards an alternative, if plausible reading based on the probabilities of the two sets of conflicting facts presented by the opposing parties. I highlight the significance of the judgment before recommendations for improved public policy formulation are proffered. [ABSTRACT FROM AUTHOR]

Education is one of the most topical issues in South Africa. In recent years, particularly in the period after the adoption of the UN Convention on the Rights of Persons with Disabilities (2006) (hereinafter CRPD), the discourse on the education of children with disabilities has mainly focused on the potential of White Paper 6 on Special Needs Education (2001) (hereinafter WP 6) and its implementing programmes to facilitate the realisation of the right to education for children with disabilities. The CRPD proposes inclusive education as the appropriate way of ensuring the right to education for children with disabilities, and sets out a framework for the implementation thereof. In addition, the CRPD sets out other principles which essentially redefine the approach to the interpretation and implementation of the rights of persons with disabilities. One such principle is the principle of non-discrimination, which demands that all rights be implemented on a basis of equality between all people, disability notwithstanding. Arguably, the legal and policy frameworks on education in South Africa reflect the standards proposed under the CRPD to some extent, and other instruments on the right to education. However, there are still considerable challenges in the conceptualisation and implementation of inclusive education, especially at the basic education level. These challenges are not unique to South Africa, and are mainly attributable to the evolutionary background of the concept of inclusive education at the international level. Hence for instance, the understanding of inclusive education often tends to focus exclusively on the education of persons with disabilities as opposed to the inclusion of all marginalised and excluded groups. This narrow understanding is replicated in South African law, policy, and practice of education. Challenges to the realisation of inclusive basic education in South Africa are compounded further by the pertinent issues underlying the implementation of basic education in South Africa such as the question of equality in education, the financing of basic education, the nature of the state's duties pertaining to the provision of basic education, and the interpretation of the notion of basic education. The understanding of inclusive education in South Africa has also been impacted by historical factors, such as the apartheid exclusion of the masses from mainstream basic education, and the subsequent need to "include" everyone in post-apartheid education. All of these factors point to the need to interrogate the current approaches to inclusive basic education in South Africa as against the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), and international standards that South Africa has committed to through the ratification of the CRPD and the UN Convention on the Rights of the Child (1989) (hereafter the CRC). For instance, there is a need to establish the extent to which the differentiated obligations with respect to basic education as distinct from other levels of education apply to inclusive education. Hence, is there a difference between the nature of the state's obligations in respect of "basic education" and those relative to "inclusive basic education"? Further, it is imperative to establish the convergence or divergence between inclusive education as set out in the CRPD and as implemented through WP 6. [ABSTRACT FROM AUTHOR]

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission. Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person. Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the Electronic Communications and Transactions Act 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement. Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions. [ABSTRACT FROM AUTHOR]

This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J. [ABSTRACT FROM AUTHOR]

The use of currency as a medium of exchange for goods and services is essential in our daily lives. The concept of currency evolved from bartering to the use of coins and notes and now to the current digital age as the continuation of society's advancement has led to a new series of technological innovations with regard to payment methods around the world. Methods of payment are built on various platforms such as mobile phones, the internet, and digital storage cards. These payment systems have fostered the development and growth of fintech companies such as Paypal, Apple Pay, Samsung Pay, Alipay and others. The latest development is the use of blockchain to facilitate payments, more specifically the use of cryptocurrencies to facilitate transactions. The most popular cryptocurrency is bitcoin. Payments form part of commercial contracts which parties have a legal obligation to perform. South Africa has a legislative framework for payment systems wherein users have rights and obligations. This article will discuss the development of currency in South Africa and determine whether the current legislative framework for payment systems is applicable to cryptocurrencies such as bitcoin. [ABSTRACT FROM AUTHOR]

Concerns over climate change are increasingly reaching an urgent level. Many countries have begun focusing their efforts on mitigating its devastating impact. At the same time countries need to ensure their economic growth and development, thus calling for greater energy usage leading to increased greenhouse gas emissions. As the environment struggles to adapt to the rapid changes brought about by climate change, the effects are felt by the most vulnerable of the world's population. Reports from the Intergovernmental Panel on Climate Change have outlined the reasons and the effects of climate change providing actions required to mitigate these effects. Unfortunately developing countries, including South Africa, are the most affected. The current energy system in the country is primarily based on fossil fuels, which emit the greatest amount of greenhouse gases. To ensure that South Africa mitigates the impact, government needs to safeguard and promote sustainable development. To do this South Africa should weigh its energy mix in relation to the environment and the wellbeing of its citizens. A comprehensive and robust regulatory framework on climate change is required thus ensuring the achievement of South Africa's developmental goals well into the future and ensuring participation in the global effort against climate change. Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP) signifies a good start towards the effective regulation of climate change in South Africa. [ABSTRACT FROM AUTHOR]

This article seeks to ascertain whether refugees who are victims of sexual violence in contracting states enjoy access to courts per Article 16 of the United Nations (UN) Convention Relating to the Status of Refugees (1951 Refugee Convention). It does so by comparing the situation of urban refugees in South Africa with that of refugees in camps in Tanzania and settlements in Uganda, beginning with a description of what "accessing courts" entails in the respective domestic criminal justice systems and of what mechanisms are in place for addressing sexual offences. It further uses the qualitative analysis of documented prosecuted cases of sexual violence in South African, Tanzanian and Ugandan courts between 2013-2017, 2009-2016 and 2013-2017 respectively to establish if these countries prosecute cases of sexual violence suffered by their citizens and whether claims of such violations affecting refugees also enjoy the same treatment. The enquiry found that of 328 documented prosecuted cases of sexual offences in South Africa, victims who were citizens were a majority in number. In Tanzania there appeared to be few prosecuted cases of sexual violence against refugees, but given that limited documentation is available, it is difficult to assess the actual figures. In Uganda the 187 recorded prosecuted cases of sexual offences in the years of investigation all related to citizens, despite the introduction of a mobile court to refugee settlements. Overall, this paper recommends that the countries under review adopt measures to ensure the prompt prosecution of cases of sexual violence against refugees and thereby enable them to access courts and testify against their assailants. [ABSTRACT FROM AUTHOR]

This article investigates the legal framework governing the role of traditional leaders in land use planning, through a historical gaze at the nature and authority of traditional leadership in South Africa. It is through this brief historical discussion that the influence of colonial and apartheid concepts of traditional leadership, as concretised in legislation, comes to the fore. This then creates a basis from which the Traditional and Khoisan Leadership Act 3 of 2019 and the Spatial Planning and Land Use Management Act 16 of 2013 are explored. [ABSTRACT FROM AUTHOR]

South Africa's research incentive system rewards faculty members and affiliates for publishing in outlets that are "accredited" by the Department of Higher Education and Training. This arguably perverse incentive makes academic research a potentially aggressive numbers game. It is compounded by factors such as undue delay in peer review, difficulty in securing expert evaluators, and poor understanding of who constitutes a "peer". Despite the "publish or perish" pressure on researchers and the prohibition of the parallel submission of manuscripts by many journals, there is negligible research on publishing problems in South African journals. Informed by a literature survey, editorial experience and conversations with colleagues, this article seeks a dialogue about these problems, which it characterises as a tsetse fly perched on the scrotum. On the one hand, the current incentive system commodifies outputs and diverts attention from building knowledge with socially responsive research to building the financial coffers of universities and authors. On the other hand, inappropriate editorial interpretations of a "peer" and the gratis nature of peer evaluation encumber the publishing process. We argue that this situation erodes academic excellence, encourages the growth of predatory journals, and potentially harms national development. [ABSTRACT FROM AUTHOR]

Climate change is one of the most significant challenges of the 21st century. To combat climate change the international community has agreed to keep the average temperature increase well below 2°C above pre-industrial levels. Despite this consideration, the latest scientific evidence suggests that the planet has already warmed by 1.1°C above pre-industrial levels. The slow reaction by national governments to reducing greenhouse gas emissions has prompted cities to take ownership of climate change mitigation action and drive global intervention from the sub-national level. These urban areas are home to more than half of the world's population and have immense energy requirements, and typically rely heavily on fossil fuels to meet this demand. Therefore, a shift to city level climate governance is significant as cities are both the victims and the culprits of climate change. Should cities supplant fossil fuels with renewable energy initiatives in meeting their energy demands, this would provide a significant boost to climate change mitigation efforts. Bioenergy as a form of renewable energy can potentially contribute to the energy mix in cities through biomass exploitation while simultaneously addressing climate change mitigation efforts. This article focusses on the role of bioenergy in the energy discourse in cities and the potential of law and policy to contribute to developing these biomass-based systems. The article provides insight into the South African bioenergy regulatory framework from an energy and climate change perspective and offers an account of what bioenergy can contribute to cities when considering the transition to a low-carbon economy. [ABSTRACT FROM AUTHOR]

A recent development in South African environmental law is the use of plea and sentencing agreements. The main objective of environmental law is to promote the sustainable use of natural resources while preventing pollution and ecological degradation. Grand environmental due diligence processes could achieve sustainable development; the use of criminal sanctions with sentencing agreements could be more effective. This paper answers the question whether the plea and sentencing agreements in reality achieve the objectives of environmental regulation? This study analyses this recent development by looking at selected recent cases in South Africa. The study found that plea and sentence agreements are potentially effective, subject to the effective monitoring of compliance and enforcement against non-compliance with the undertakings made by the accused person. Without institutional strengthening and effective monitoring, the plea and sentence agreement procedure remains ineffective. [ABSTRACT FROM AUTHOR]

Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisat ion and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context. [ABSTRACT FROM AUTHOR]

This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense. [ABSTRACT FROM AUTHOR]

The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law. [ABSTRACT FROM AUTHOR]

In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which had left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal (KZN JLC). I then discuss the court's refusal to develop the doctrine in KZN JLC and analyse the approach adopted instead, which saw the court invoke rationality review to create a new legal mechanism for the enforcement of a unilateral, publicly promulgated promise by government to pay on broad public law grounds. I do so from the perspective of whether or not this creative approach amounted to the development of the doctrine by another name. I consider the implications of the creative approach in KZN JLC for the development of the doctrine of substantive legitimate expectation under administrative law in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay was "subversive of PAJA and the scheme in s 33 of the Constitution". [ABSTRACT FROM AUTHOR]

The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. This was due to the existence of various approaches to the reception of community law into domestic law. The tension between community law and domestic law, international law and domestic law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law, but there is no guidance when it comes to community law and national law. This paper will explore how the SADC Community law can be applied uniformly by South Africa, Zimbabwe and all other SADC member states. This will be done by looking at decided cases with specific reference to South Africa and Zimbabwe. In order to establish the best practices in other jurisdictions, reference will be made to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by advocating the adoption of a revised Protocol on the SADC Tribunal in order to clarify the nature of the relationship between the SADC Community law and the domestic laws of SADC member states. [ABSTRACT FROM AUTHOR]

The South African Law Reform Commission has proposed a single marriage statute to reconcile the several enactments regulating marriage in South Africa. This comment argues that the Bill should include old customary marriages in its definition of a customary marriage and is underinclusive in its recognition of polygyny with a religious or cultural basis and not the more general practice of polygamy. Furthermore, the requirement of cohabitation for the recognition of a life partnership is onerous and may exclude vulnerable parties from protection. While the Bill is commended for requiring a husband to obtain the consent of existing wives before he concludes a further marriage, the note recommends that the Bill give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women. [ABSTRACT FROM AUTHOR]

The article examines the concept of mobile money and how it is regulated in South Africa before discussing money laundering and the current anti-money laundering law (AML) framework in the country.

Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, pharmaceutical and agribusiness corporations. Yet the exploitation of TK by these industries does not usually lead to corresponding benefits to indigenous communities either in the form of attribution or compensation. Such misappropriations of TK are aided by the fact that the global intellectual property (IP) regime as presently structured is based entirely on the traditionally western or conventional description of knowledge, as are its conceptions of individual intellectual property ownership. In response to the fact that their calls for the reform of the global patent system have not be heeded, most developing countries, including South Africa, have resorted to the adoption of a radically different strategy in their approach to intellectual property, particularly as it concerns the protection of their TK from misappropriation. This is evident in the adoption of strategic measures in South Africa for the protection of various aspects of its TK forms from misappropriation, such as the National Recordal System (NRS) and Disclosure of Origins (DRs). This paper seeks to explore the implications of these measures in leveraging TK within the structure, content and conceptual framework of the patent system in South Africa. The focus is on TK associated with the medicinal uses of plants (TKMUP). [ABSTRACT FROM AUTHOR]

In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has - and perhaps inevitably so - ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof. [ABSTRACT FROM AUTHOR]

This contribution seeks to assess whether the generally accepted narrative of the emergence of the common purpose doctrine in South African law, as set out in Rabie's analysis of the doctrine, is indeed correct. In particular the following questions are examined: (i) Did the common purpose doctrine derive from English roots? (ii) Were the means of entry into South African law the Native Territories Penal Code? (iii) Did the doctrine indeed emerge in South African case law in 1917, in the Appellate Division case of McKenzie v Van der Merwe? [ABSTRACT FROM AUTHOR]

This article provides insights into the legal and social contexts surrounding inheritance divisions in both Old Babylonian and South African cultures. It proposes an innovative approach to the division of inheritance in South Africa that is in line with the country's constitutional values and diverse cultural heritage. In order to compare the inheritance divisions, the study identifies the shared characteristics between Old Babylonian and South African practices. These inheritance divisions often involve disagreements and complexities among heirs, which may result in negotiations and the reorganisation of inheritances through mechanisms like sale, donation or exchange. By highlighting these commonalities the article sheds light on the differences and similarities in the legal and social contexts in which these divisions occur. While the South African approach has been influenced by Roman-Dutch legal scholars, incorporating the adaptable legal practices of the Old Babylonian tradition could introduce further innovation and adaptability to the South African inheritance division process. [ABSTRACT FROM AUTHOR]

In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged perpetrators to counter and silence survivors. This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist. It will be argued that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal justice system. Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators. [ABSTRACT FROM AUTHOR]

South Africa's suite of environmental laws contains many criminal sanctions and penalty provisions. Whether the criminal sanction is an effective tool that realises the constitutionally protected environmental right depends on how it is practically enforced and whether potential offenders become aware of such enforcement measures. This article reports on research aimed at collecting and analysing prosecutions for industrial-related transgressions (conducted mainly in Magistrates' Courts) and involving offences under the National Environmental Management Act (NEMA), the Waste Act, the Air Quality Act and the National Water Act. An analysis of 53 prosecutions shows that most cases resulted in convictions, half were concluded through plea and sentence agreements, half involved the conviction of individuals, no direct imprisonment penalties were imposed, and low fines were imposed in most cases. The findings include that there is some inconsistency in how different listed activities or water uses are treated as separate or consolidated criminal charges, and the exact number, outcome, or trends arising from such cases are difficult to determine as there is no central, readily accessible database of concluded prosecutions. Increased access to such information will improve knowledge, implementation and the effective use of the criminal sanction through prosecutions. In turn, this will contribute to the improved realisation of the constitutionally protected environmental right. [ABSTRACT FROM AUTHOR]

The common law "escape rule" determines that if a wild animal escapes from its controlled environment and reverts to its natural state of freedom, it is res nullius and may be acquired by another party by occupatio. To place the owners of game in a more favourable position when their game escapes from its enclosure, the aforementioned common law rule was amended by the Game Theft Act 105 of 1991 (GTA). Sections of the Game Theft Act 105 of 1991 came under discussion in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 2016 4 SA 457 (ECG) and later in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 4 SA 206 (SCA). Two separate issues came before the courts. First, whether a certificate in terms of section 2(2)(a) of the GTA is a prerequisite for the operation of section (2)(1)(a) of the GTA; and second, whether the common law must be developed to provide that wild animals that are sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation, are res publicae owned by such organ of state. Neither one of the cases thoroughly considered the second issue before the court. Therefore, the purpose of this contribution is to investigate the possibility of developing the common law to provide that wild animals that are sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation are res publicae owned by such organ of state. In Roman Law res publicae were classified as public things that were out of commerce and intended for public use. They are often referred to as state property, but they belong to the entire civil community and their common interests in these things are safeguarded by the state. This proposed development bears some resemblance to the international environmental law principle known as the public trust doctrine. The public trust doctrine determines that a country's sovereign acts as the guardian of the public interest in natural resources by holding them in trust for the benefit of the nation as a whole. The article provides a theoretical analysis of the proposed development of the common law by exploring (a) the significance of biodiversity conservation and protected areas in South Africa; (b) the application of the GTA in the context of protected areas; (c) the concepts of res nullius, res publicae and the public trust doctrine and (d) the development of the common law in South Africa. [ABSTRACT FROM AUTHOR]

This contribution explores the relationship between traditional authorities and state functions in South Africa. The authors argue that traditional leaders, while not organs of the state, have functions similar to state functions, especially on a local government level. The authors suggest that this relationship can be characterised as a form of private participation in exercising state functions, although it does not amount to full privatisation. The recognition of traditional law systems in the Constitution and relevant legislation provides a legal basis for this relationship. The authors also examine the role of public-private agreements in enhancing legal certainty and clarity. Finally, the authors consider the potential benefits of transforming traditional authorities into state organs, aiming to promote the development of traditional communities and enhance the delivery of essential services. [ABSTRACT FROM AUTHOR]

A "fragmented property" or "multiple unit" property is one in which several persons have ownership or title interest in sections or parts of a single property scheme. The title interest could be in a block of flats/apartments or maisonettes in a building, and a building in a group of buildings, or townhouse(s), and fully detached houses in a complex or estate. Without clear rules regulating the nature and scope of title, the use of individual units in the scheme, and the conduct and interpersonal relations of the parties involved, incessant litigation or self-help remediation is likely to be common. In Nigeria the first fragmented property scheme was established by the government in 1959 to provide accommodation for senior public servants. Several others have followed, and the establishment of housing estates is no longer restricted to the government. However, the intractable problem with schemes in Nigeria is that there is a lack of a specific legal framework to address the provision of an unimpeachable title to buyers, and for the administration of schemes for the benefit of all parties. There is therefore a need to address the problems associated with the transfer of title and the administration of fragmented property schemes. Doing so is the objective of this article. To achieve that objective, the legal framework applicable to fragmented property schemes in South Africa is critically considered with a view to learn from the experience of the country's robust legislation developed by caselaw, in addition to academic opinions over a period exceeding half a century. Recommendations to deal with the challenges in Nigeria regarding the issues of transfer of title and management of fragmented property schemes are proposed. [ABSTRACT FROM AUTHOR]

This article deals with employees' right to freedom of association and their protection against victimisation when exercising this right in the workplace. First it explains the concepts of "freedom of association" and "victimisation". It then considers the protection of employees against victimisation for exercising the right to freedom of association internationally and domestically, however, only in the employment context. It considers the protection of the right to freedom of association in South Africa in terms of the Constitution and its regulation under various sections of the LRA. It also looks at limitations on the right to freedom of association and the remedies available to employees who experience victimisation because of exercising this right. It further considers the regulation of the right to freedom of association in the UK. It argues that although this right is well protected internationally and domestically, employees still experience victimisation as a result of exercising it. It further argues that the protection of this right and its exercise by employees is necessary to bring a balance to an uneven relationship between employers and employees in the workplace. It concludes that trade unions together with employers have a responsibility to ensure that employees exercise their constitutional right to freedom of association with no fear of victimisation. [ABSTRACT FROM AUTHOR]

This article explores the application of third-party litigation funding (TPLF), also referred to as commercial litigation funding, in insolvency litigation by way of a comparison of the legal position in Australia and South Africa. It proposes that TPLF could offer significant benefits by enabling liquidators of insolvent estates to pursue and enforce claims through civil proceedings with the aim of swelling the assets of the insolvent estate, ultimately to the advantage of the creditors. Since both jurisdictions share elements of English law, both were confronted with the English law doctrines of champerty and maintenance initially being regarded as impediments to the development and/or use of TPLF. Currently, and mainly due to developments in terms of case law, the concept of TPLF has in principle been accepted in both jurisdictions. However, in Australia the development originally transpired in the field of insolvency litigation. In South Africa the context was more in the confines of general litigation. It is submitted that the South African system could benefit by considering various aspects of the Australian system regarding the use of TPLF in insolvency litigation. It remains a question whether or not the respective systems would benefit by adopting comprehensive regulatory measures to regulate TPLF. [ABSTRACT FROM AUTHOR]

In Ex Parte JCR the Pretoria High Court sought to introduce new requirements for all surrogacy applications in South Africa. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures "for preparing them for this process [of not bringing the surrogate baby home]" or "for a new addition to their family", respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate mother and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the surrogate motherhood agreement. The position taken in this article is that the mandatory psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the persons affected by the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents are allowed to have any more children. The court's position that such psychological evaluations would be in the best interests of existing children is based on a misunderstanding of the court's duty in this regard. In fact, the mandatory psychological evaluation requirement is more likely to undermine children's interests. Furthermore, the mandatory psychological evaluation requirement violates the commissioning parents' constitutional rights to dignity, equality, reproductive autonomy, privacy, and access to reproductive healthcare. [ABSTRACT FROM AUTHOR]

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate. [ABSTRACT FROM AUTHOR]