Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

The role of public policy in King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021)

Rika van Zyl — Sun, 05 May 2024 00:00:00 +0000

In King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021), the Constitutional Court considered whether a discriminatory out-and-out disinheritance clause in a private will could be declared unenforceable in terms of public policy. This opened private wills with disinheritance clauses to the scrutinising evaluation of public values despite freedom of testation. Although public policy has always been an elusive concept, South African public policy is infused with constitutional values to give more clarity on the content of public policy. In King a conflation emerged between constitutional rights, legislative violations and public policy values, however. The court grappled with the question of whether to apply the Constitution directly based on a violation in terms of section 9(4) or whether the section 8 of the Equality Act should be applied directly through the subsidiarity principle, or whether the discriminatory clause should be evaluated through the public policy lens. Where the conflicting values were weighed up there seem to be hints of subjective views to tip the scales in favour of one value over another. This is a concern when public policy is used to advance a subjective view of what the community values more, especially when it involves the disruption of the devolvement of a deceased's estate. This underlines the difficult application of public policy values, even in a constitutional democracy, when competing values are at play.

The ramifications of International Law in South Africa: Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022)

Malebakeng A Forere — Sun, 05 May 2024 00:00:00 +0000

This work is centred on the judgment of the Constitutional Court in Blind SA v The Minister of Trade (CCT 320/21) [2022] ZACC 33 (21 September 2022), and the issues raised by this judgement. The main concern for this contribution is the overreliance on a non-ratified treaty – the Marrakesh Treaty –,which calls for the assessment of the place of international law in South Africa. The paper finds that while the issues raised in the Blind SA case – the rights of people with disability – are legitimate, the manner in which they were raised went beyond the prescripts of the Constitution.

Non-educator stakeholders and public-school principals' views on the proposed amendments to the South African Schools Act 84 of 1996

Johan Kruger, Johan Beckman, André du Plessis — Sun, 05 May 2024 00:00:00 +0000

On 13 October 2017 the Department of Basic Education (DBE) published the Basic Education Laws Amendment Bill (BELA Bill). The draft Bill aims to revise certain sections of the South African Schools Act 84 of 1996. The DBE gave education stakeholders a window period to make inputs on the proposed Bill. Over 5 000 submissions were received.
On 27 and 28 January 2020 Ms Angie Motshekga (Minister of Basic Education) invited the educator unions and governing body federations to further consultations on the Bill. After further amendments the Bill was again circulated to the public in 2021. On 10 January 2022 the Bill was tabled in the National Assembly.
In this article, the authors discuss school principals' (as education stakeholders) opinions on the proposed amendments with a specific focus on school admission and language policies. The article is grounded in the context of governance and management terms like the decentralisation and recentralisation of the authority and functions of principals and school governing bodies (SGBs). The research took the form of a qualitative case study using semi-structured interviews, a literature review and document analysis to gather data.
The aim of the research was to explore the views of principals and non-educator stakeholders on these proposed changes to the current Schools Act. The question the research sought to answer was whether or not the principals thought that the proposed amendments would be beneficial to school management and governance in general.
The data produced mixed results. Some education stakeholders were very critical of the proposed amendments to the Schools Act while other groups welcomed the proposed changes. Some principals felt that political agendas were the reason why government was rescinding (recentralising) some of the functions devolved to them in 1996 after the inception of democracy. They believed that recentralisation would impede their autonomy when they carried out their professional and governance duties (the duties delegated to principals) in partnership with their SGBs. The principals further indicated that should the BELA Bill be promulgated into law the current education system would regress to the Apartheid system of education. Other principals welcomed a more centralised governance approach where school leadership was dysfunctional and where SGBs provided no meaningful assistance to school principals.

The international court system: A solution to the crisis in investor-state arbitration?

Lawrence Ngobeni — Sun, 05 May 2024 00:00:00 +0000

Most known investor-state disputes are referred to a form of international arbitration known as investor-state arbitration (ISA) or investor-state dispute settlement (ISDS). The rest are referred to domestic arbitration or litigation before the courts of host states. The International Centre for Settlement of Investment Disputes (ICSID) is the largest ISDS institution, having handled 829 out of 1190 cases by December 2021. However, in recent years the ISDS regime has faced challenges that have reached crisis proportions. States have responded to these challenges in different ways. For example, during 2014 the European Union (EU) intended to provide for ISDS in its anticipated trade agreements with the United States of America and Canada. In preparation the EU held public consultations wherein the public was invited to comment on whether ISDS could be used in these agreements. Over 90 per cent of the voters rejected the inclusion of ISDS therein. In response the EU abandoned ISDS and created a bilateral Investment Court System (ICS). The final death knell for ISDS in the EU came in 2018 and 2021 when the Court of Justice of the European Union (CJEU) ruled that ISDS among EU states is unlawful and incompatible with its legal order. This paper aims to assess the legal nature of the ICS, as well as whether the ICS can resolve the challenges that face ISDS worldwide. The paper concludes that firstly, the ICS is a hybrid of a court and a tribunal; secondly, that the ICS fails to fully address all the challenges faced by ISDS. It is a work in progress that must be interrogated further and be improved upon over time.

Reflecting on evictions and unlawful occupation of land in South Africa: Where do some gaps still remain?

Zsa-Zsa T Boggenpoel, Sameera Mahomedy — Sun, 05 May 2024 00:00:00 +0000

The issue of unlawful occupation and homelessness has been a very prominent topic for many decades. While our approach to evictions and unlawful occupation has clearly shifted from a draconian approach under the Prevention of Illegal Squatting Act 51 of 1951 (hereafter PISA) to an approach that focusses on human rights under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE), there are still various aspects that potentially fall short in protecting the rights of the various stakeholders involved in these disputes. In particular, this paper focusses on three areas where PIE potentially falls short. In this regard we examine cases of the impossibility of eviction orders, our current understanding of the notion of "home", and whether or not PIE applies to both occupied and unoccupied structures. We also briefly explore issues relating to the non-implementation of PIE, especially in relation to the government's goal of preventing unlawful occupation. Central to these discussions is whether our current approach is sufficient and in line with constitutional obligations or whether we need to rethink our approaches to ensure that we do not undo the progress made since apartheid.

Including children's views in divorce mediation: A comparative analysis and recommendations for Kenya

Vivian Nyaata, Frederick Noel Zaal, Stephen Allister Peté — Sun, 05 May 2024 00:00:00 +0000

It is important that the views of children be considered during the process of their parents' divorce. Parental divorce mediation informed by the needs of children is more likely to produce better outcomes. The ways in which divorce mediators in South Africa, Australia and Kenya consider views of the children of marriages in the process of dissolution are compared. The extent to which these three countries have domesticated and implemented relevant international law and policies is compared. Recommendations are provided for Kenya, where empirical research was undertaken to establish the practices and attitudes of Kenyan divorce mediators. The outcome of this empirical research indicates that – prior to mediating between their parents – most of Kenya's divorce mediators fail to elicit the views and wishes of the children who will be affected by the divorce. Proposals are put forward on how this may be rectified. In formulating these proposals, practices in South Africa and Australia are examined for the purpose of comparative analysis. The recommendations for Kenya include the formulation of appropriate laws and policies; the establishment of cost-effective mechanisms for hearing the voices of children prior to their parents' divorce mediation; and the education of the general public on the importance of considering the views and wishes of children when their parents are divorcing.

Funding climate change initiatives: Utilising the law for enhancing financial management in cities

Johandri Wright — Sun, 05 May 2024 00:00:00 +0000

Climate change affects cities disproportionately, and some cities have limited fiscal capacity to address climate change. It is therefore necessary to ensure that the climate funds cities do have at their disposal are used in a way that maximises their impact. However, financial mismanagement and corruption have led to significant money losses in climate funds. Although measures against general public sector corruption can be used to improve climate finance management, the climate finance market poses some unique challenges. Traditional anticorruption measures can be rethought to maintain their effectiveness against corruption in climate finance. Against this background, the article explores how international and regional law can be used by cities to improve the management of climate funds. Eight financial controls are identified and critically discussed to show how they can be effective in the specific case of climate finance. The article also shows some examples of where these financial controls have been implemented in cities.

Plugins and POPI: A critical discussion into the legal implications of social plugins and the protection of personal information

Helga Schultz, Warren Freedman — Sun, 05 May 2024 00:00:00 +0000

Social plugins are one of the many trackers used by companies with an online presence. However, under the Protection of Personal Information Act 4 of 2013 (POPI), these trackers have certain legal consequences for internet users. The main reason for this is that trackers tend to process personal information without informing internet users that their data are being collected, the reason for the collection or processing thereof, or who the responsible parties are that are collecting and processing the personal information. The article looks at these issues, amongst others, in the light of a 2019 judgment from the Court of Justice of the European Union or CJEU, namely, Case C- 40/17 Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW e.V. EU:C:2019:629. Due to the fact that it has had data protection legislation for much longer than other countries or legal jurisdictions, including South Africa, the European Union (the EU) has a substantial body of case law interpreting the data protection legislation of the EU itself as well as that of the individual member states. One of the main instruments used as guidance by the drafters of POPI was Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (hereafter Directive 95/46). Directive 95/46 was previously considered the gold standard, before Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) (hereafter the GDPR) was enacted and Directive 95/46/EC was finally repealed. Since Directive 95/46 was one of the main guiding documents used in drafting POPI, one may expect that the South African courts may turn to the EU and consider how the CJEU has interpreted the similar provisions contained in Directive 95/46, especially since there is very little South African jurisprudence available on POPI. The four main issues under discussion are: who, other than the internet users, has the locus standi to bring an application in terms of POPI? Second, what are the responsibilities of joint responsible parties towards internet users? Third, where there are joint responsible parties, do both need a legitimate interest to process personal information? Lastly, who will be responsible for obtaining the necessary consent to process the personal data?

Interpreting the right to work and its application in the South African legal framework

Kim-Leigh Loedolf — Sun, 05 May 2024 00:00:00 +0000

The article discusses the right to work within the context of South Africa. South African law, at present, does not provide for a right to work as provided for by the International Covenant on Economic, Social and Cultural Rights (ICESCR). Implementing the right to work might address the high unemployment rate in South Africa and it is concerning that the right to work has not yet been considered as potential solution. The aim of the article is to interpret the right to work through the interpretive lens of the United Nations Committee on Economic, Social and Cultural Rights. The article discusses the obligations created by the ICESCR and the progress the government of South Africa has made to meet the state obligations relating to the right to work as provided by the ICESCR. The article concludes with a comprehensive definition of the right to work and suggests that the government of South Africa, adopt the right to work immediately as a means to avoid further hardship partially caused by the lack of a rights framework guaranteeing the right to work in South Africa.

The concept of social justice in mine-host community involvement and benefit accrual: Reflections from mineral extraction in Zimbabwe

Stanford Chagadama, Germarié Viljoen — Sun, 05 May 2024 00:00:00 +0000

Minerals play a vital role in societal and economic growth. As finite and non-renewable resources, minerals inevitably diminish upon extraction. Consequently, there is an expectation that the extraction process should involve and benefit the local communities hosting these resources. Despite expectations of benefitting local communities, mineral extraction often results in more economic, social, and environmental burdens than advantages for them. This contribution is centred on a theoretical inquiry, employing the concept of social justice to explore and mitigate the disparities in the distribution of costs and benefits experienced by mine-host communities. It aims to balance the inequities, emphasising the principles of distributive, procedural and remedial justice to reconcile the losses and gains in a fair and equitable manner.

The constitutional case against the mandatory vaccine policy — an interdisciplinary South African perspective

Casper Lötter — Sun, 05 May 2024 00:00:00 +0000

In this article, I rethink the perceived/received wisdom of the mandatory vaccine policy which has been punted so ardently, largely uncritically, in South Africa. I investigate whether this line of argument could be justified from a comparative South African constitutional perspective. It became evident in the early stages of my research that the legal perspective is too narrow and constricting to allow for a proper understanding of the puzzle. Following Friedman's suggestion of the schism between Western-based curative medicine and preventive strategies, I employ a critical public health theoretical framework complemented by insights from the social sciences. Given that the vaccine is a product of an outdated paradigm, South Africa's erroneous approach to the pandemic led to disastrous consequences and fared less favourably than the rest of Africa. It is concluded that a mandatory vaccine policy is both unconstitutional and unjustifiable, in the wider view.

Securities markets and their regulation in Zambia: A new dawn or a rebranding of the old norms?

Chipasha Mulenga — Sun, 05 May 2024 00:00:00 +0000

Securities markets are a barometer for the economic progression of any country. The quest to harness the maximum benefits that such markets afford has led governments to enact specific legislation and develop appropriate policies. Despite enacting legislation in 1970, it was only in 1993 that the Zambian securities market was established. Simultaneously, the Securities Act 1993 was also enacted. However, it was replete with shortcomings, leading to its repeal and replacement by the Securities Act 2016 (amended by the Securities (Amendment) Act 21 of 2022; hereinafter the Securities Act 2016 as amended). The Securities Act 2016 as amended has for the most part been hailed as a progressive piece of legislation that has incorporated global best practices aimed at enhancing the securities market. There is optimism that the Securities Act 2016 as amended has breathed new life into the securities industry which was seemingly ailing and on life support. It remains questionable, however, whether the Securities Act 2016 as amended enhances the performance of the securities market by effectively fostering fair and efficient trading and ensuring financial integrity, or if it simply reiterates the problems of its predecessor or worse still creates new challenges.

In this article the author critically assesses the Securities Act 2016 as amended to ascertain the extent to which it conforms to the IOSCO Principles 2017 and the practices of other countries such as Kenya, whose Capital Markets Act Chapter 485 offers greater clarity.

Editorial: Language and Law

Natasha Ravyse, Michael Laubscher — Sun, 05 May 2024 00:00:00 +0000

No abstract

Book Review: Linguistics for Legal Interpretation Terrence R Carney (UJ Press Auckland Park 2023)

Michael Laubscher — Sun, 05 May 2024 00:00:00 +0000

No abstract

The discriminatory practice of language testing for Authenticating citizenship: An analysis of operation Dudula through a forensic linguistics lens

Zakeera Docrat — Sun, 05 May 2024 00:00:00 +0000

This article utilises both the theoretical and practical lenses located in the discipline of forensic linguistics to examine the practice of administering language tests to applicants for citizenship in South Africa, considering the prevailing policies and practices in an international context, and concludes that they should be avoided. In this interdisciplinary article I outline the South African constitutional and legislative provisions affecting language testing and language proficiency when applying for citizenship in multilingual South Africa. In this paper I discuss the linkages between language, citizenship, and xenophobia, building on the work by Brits, Kaschula and Docrat on the role of language in xenophobic attacks and protests. I argue that language tests for immigrants in the South African context perpetuate Apartheid-era thinking, policies and practices. This creates linguistic inequality and contributes to racial tensions and divisions in communities rather than creating social cohesion and equality for all. The article provides a case study of Operation Dudula, where language is being used to carry out xenophobic acts under the banner of citizenship. A brief comparison is drawn with Ryanair airlines' language tests for South African citizens.

Translating educational and cultural literacy works under Berne, Ius Cogens, and Linguistic Genocide

Klaus D. Beiter — Fri, 03 May 2024 00:00:00 +0000

The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.

Language as a tool of divisive politics: Perspectives on foreign nationals in South Africa

Avitus Agbor — Sun, 05 May 2024 00:00:00 +0000

The role of language in a diverse and democratic society is critical for many reasons: first, it serves as a vital tool for the realisation of the right to freedom of expression. Secondly, it brings into confluence two other rights: the rights to dignity and equality. When language has the potential to cause hurt or harm, or incite others towards hatred, discrimination, or violence, then law as an instrument must be relied upon to regulate it. Political rhetoric uttered by top politicians in South Africa does not reflect the truth from a policy perspective; it incites hatred towards foreign nationals, shatters communities as fear and suspicion fill individuals who target foreign nationals and is counterproductive when one thinks of nation-building. The rhetoric exceeds the limits of legally protected speech. In addition, scapegoating foreign nationals for the country's socio-economic woes is not only dishonest but is a form of political corruption.

Can language prevent flexible SCR calculations? New duties for auditors in The Prudential Authority v Constantia Insurance Company Limited, Gauteng Local Division, Johannesburg, Case Number 2022-19765

Neels Kilian — Sun, 05 May 2024 00:00:00 +0000

This article analyses the importance of the solvency capital requirement (hereafter SCR) and the minimum capital requirement (hereafter MCR) formulae and why an insurer's external auditor should audit these and disclose its contents in the insurer's financial statements. When calculating the SCR, the reason for requiring such a disclosure is to allow the Prudential Authority an opportunity to understand whether the assumptions, parameters and techniques (also referred to as economic considerations) applied by actuaries comply with section 36 of the Insurance Act 18 of 2017. Administrative costs and written premiums are considered when calculating the MCR, although written premiums could be subjected to different interpretations, which might affect this formula. Accordingly, had Constantia Insurance Company Limited's auditor audited these formulae in 2018 and disclosed their contents in the financial statements, the Prudential Authority would have commenced liquidation procedures in 2019, not choosing instead to wait and monitor the company's solvency requirements on a weekly basis for four years. As a result, owing to the lack of transparency in the financial statements and non- compliance with the SCR and MCR, Constantia spent nearly R733 000 000 over the three-year period to fund its business activities.