Law In South Africa Research Articles

CHERISHING CUSTOMARY LAW: THE DISPARITY BETWEEN LEGISLATIVE AND JUDICIAL INTERPRETATION OF CUSTOMARY MARRIAGES IN SOUTH AFRICA

The constitutional recognition of customary law in South Africa has opened a new conduit for the development of customary law. With the courts taking the lead in addressing customary law disputes, the interpretation of customary law has come with setbacks. This article argues that the development and reform strides made by the judicial and legislative institutions appear of modest benefit to the people they strive to protect, advance and regulate, especially during interpretation and reform. The article seeks to confront the judicial interpretation of customary law based on the recent High Court case of Sengadi v Tsambo. The court had to consider an application for four types of relief. The court deviated from the factual nature of customary law in relation to a spouse’s burial rights when it concluded that a valid customary marriage and all the validity requirements outlined under the Recognition of Customary Marriages Act had been met. Indicating the factuality of customary law when it relates to marriage and its link to burial rights, “that a male descendant of the household belongs to his paternal family, his place and existence being one with his paternal roots. His right to belong to his paternal family is absolute and customary.” The above ignored, yet crucial cultural practice informs the interpretation of customary law under the constitutional guise. The Constitution affirms the right to practise and observe one’s culture. In Sengadi v Tsambo, to determine the burial rights of a spouse, the court employed a narrow and strict interpretation instead of interpreting the cultural practice of bridal integration against a holistic customary background. The article advocates for courts to adopt purposive interpretational approaches in reforming customary law. It emphasises for the consideration of the interpretational rules and theoretical frameworks proposed by legal scholars to reflect the factual nature of customary law. As the positivist approach to customary law undermines the pluralistic nature of the South African legal system. The article pioneers for the recognition of living customary law as holistic, and an integral normative system of indigenous people of South Africa, while taking into account the history and context of this legal system.

AN APPRAISAL OF THE ROLE OF RITUALS AND THEIR WAIVER IN THE CONCLUSION OF A CUSTOMARY MARRIAGE

The validity of customary marriages remains a topical issue in South Africa and the most litigated aspect of customary law. The problem is that courts often do not pay attention to the role that rituals play in the validity of a customary marriage. Courts do not always investigate the relevant living law to determine if indeed the traditional group involved allows for waiver of a ritual in conclusion of a customary marriage. Living law refers to the day-to-day norms of communities that base their lives on customary law. Living law is affected by different factors such as acculturation and urbanisation.1 The focus of this article is on some of the different traditional groups in South Africa and looks at case law in South Africa in terms of how traditional groups deal with the role of rituals in determining the conclusion of a customary marriage. The article argues that what is happening is problematic because customary law is not given the recognition it is afforded by the Constitution. The article argues that understanding rituals can play an important role in helping courts to determine whether a customary marriage has been concluded in a particular case. Rituals are also observed to integrate a bride into the groom’s family; however, there are rituals that may be waived without affecting the validity of a customary marriage. Integration of the bride is a broader term requiring scrutiny because this process includes different and varying rituals that are observed in the conclusion of a customary marriage. In customary law, rituals are significant because they are associated with legitimising certain occurrences, such as the change of a surname and the coronation of a king. This article argues that courts should appreciate the significance of rituals in the conclusion of a customary marriage. In addition, courts should understand which rituals are so important that they cannot be waived.

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)

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.

Developments in Comparative Public Law in South Africa

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.

Between Commissions of Enquiry and Direct Prosecution: Quo Vadis, South Africa?

South Africa has had its fair share of allegations of corrupt activities within the public sector. Consequently, numerous commissions of enquiries have been established to investigate matters of public interest. The most recent is the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (hereinafter the “Zondo Commission”) established in 2018 with investigative powers. R1 billion later, the Commission completed and compiled its findings in 2022/23 which contained a plethora of evidence. Despite the enormous evidence gathered by the Commission as with other Commissions before it, prosecution and conviction have been minimal. However, some of the Commission’s findings have been challenged or subjected to judicial review. The huge costs of these commissions, the sluggish nature of prosecution and convictions, and the high ratio of challenges to their findings invite the question of their effectiveness and necessity. Against this backdrop, the article argues that the government needs to redirect the resources it invests in these commissions of enquiry into strengthening the existing investigating institutions and the prosecuting authority. It is argued that the ultimate effect of any investigation into any wrongdoing should be the vindication of those who have been wronged and the restoration of what has been lost. This can be best achieved when the country has a capacitated prosecuting authority, that can thoroughly investigate and an independent judiciary which is the ultimate guardian of South Africa’s constitutional democracy. It is hoped that this paper will contribute to the advocacy for the strengthening of institutions that are designed to uphold the rule of law in South Africa.

Dignity and the Purpose of Labour Law

The article advances the notion in the context of South African labour law that the purpose of labour law is to protect the human dignity of employees. In doing so, it deviates from the accepted idea that the purpose of labour law in South Africa is to restrict the power of employers to impose their will in the employment relationship so that employees are treated fairly. Dignity is furthermore integrated and conceptualised in a manner that enhances its substantive use in labour law. This is achieved by adjusting the test for fairness of labour practices and by presenting a dignity framework. The framework consists of two dignity models: the ‘same-kind dignity model’ and the ‘self-fulfilment dignity model’. The framework furthermore harnesses the social justice rules that are applied in South African labour law to resolve the perceived tension between individualistic and communitarian facets of dignity.

Dignity and the Purpose of Labour Law

The article advances the notion in the context of South African labour law that the purpose of labour law is to protect the human dignity of employees. In doing so, it deviates from the accepted idea that the purpose of labour law in South Africa is to restrict the power of employers to impose their will in the employment relationship so that employees are treated fairly. Dignity is furthermore integrated and conceptualised in a manner that enhances its substantive use in labour law. This is achieved by adjusting the test for fairness of labour practices and by presenting a dignity framework. The framework consists of two dignity models: the ‘same-kind dignity model’ and the ‘self-fulfilment dignity model’. The framework furthermore harnesses the social justice rules that are applied in South African labour law to resolve the perceived tension between individualistic and communitarian facets of dignity.

Reaching for T in the South African archives

AbstractThis article proposes a methodology of reaching in historicity. It does so by tracing the technical object of synthetic testosterone as it has been used by trans people for gender affirming care. To show the usefulness of the method, this article employs it first in relation to mentions of synthetic testosterone in the South African Medical Journal as a primer to understanding its relationship to the state and the law in South Africa from 1963 to 2003, reaching an apex in the Cape Town Transsexual/Transgender Groups advocacy for self‐identification, much of which hinged on the role of synthetic testosterone.

Does data protection law in South Africa apply to pseudonymised data?

The use of pseudonymised datasets is increasingly commonplace as research institutions seek to balance data utility with data security. Yet, a crucial question arises: How does South Africa’s Protection of Personal Information Act (POPIA) govern these datasets, especially given their ambiguous state between de-identification and possible re-identification? A thorough examination of POPIA suggests that the determination of whether a pseudonymised dataset is personal information—and thus whether processing the dataset falls within POPIA’s purview—must be informed by the specific context of the responsible party in possession of the pseudonymised dataset. When a research institution retains both the pseudonymised dataset and its linking dataset, the pseudonymised dataset remains identifiable and is thus personal information that falls within POPIA’s purview. However, when only the pseudonymised dataset—without the linking dataset—is transferred to another entity, it is non-personal information in the hands of such a recipient, thus freeing the recipient from POPIA compliance. Such a delineation offers research institutions greater flexibility in sharing and using pseudonymised datasets. Importantly, because the original provider of the pseudonymised dataset (who has the means to re-identify the dataset) remains governed by POPIA, the privacy rights of data subjects are not undermined.

A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.

Unpacking the legality of termination of pregnancy based on ‘social grounds’ under South African law

The topic of abortion was in the limelight again in Dobbs v Jackson, where the US Supreme Court overturned the decision of Roe v Wade, ‘which guaranteed women and pregnant people a constitutional right to abortion’. While not bound by the judgment, this gives us an opportunity to reflect on the current law in South Africa which regulates the termination of pregnancy. The primary piece of legislation which governs abortion is the Choice on Termination of Pregnancy Act. Section 2 of the Act lists the grounds under which one may lawfully terminate a pregnancy. One of those grounds relates to the period of the 13th up until the 20th week of the gestation period, and states that if a medical practitioner, after consultation with the pregnant woman, is of the opinion that the continued pregnancy would significantly affect the social or economic circumstances of the woman, then the pregnancy may be lawfully terminated. The question is: What exactly is meant by ‘social grounds’? This article considers this aspect from a legal perspective and attempts to provide clarity on the issue, in the hope that this will be of assistance to medical practitioners who are concerned about the outcome of their actions, when assisting persons in this position.

Policy on trial: Participatory vs neo-liberal development

ABSTRACT This paper examines the conflict in South African government development policy and law between a people-centred participatory approach and a neoliberal growth-centred approach. In particular, we discuss how this conflict has played out in a series of related court cases from 2021 to 2022. Methodologically, the case study is based on three court judgments with individual fishers, community representatives, civil society organisations and legal entities connected to the Eastern Cape Wild Coast as plaintiffs. The defendants were the multinational company Shell and subsidiaries with two South African government ministers. Our analytical framework was informed by Jürgen Habermas’ ‘instrumental reasoning’ which was operationalised through Sherry Arnstein’s heuristic model of participation. Different interpretations and expectations of public participation found in government policy documents and law in South Africa are explored. The findings underscore the central importance of appropriate levels of inclusion in public participation, as protected by the South African Constitution, in the process of Exploration Right Applications by mining companies.

Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

An Analysis of the MTI Crypto Investment Scam: User Case

Since the start of the Covid-19 pandemic, blockchain and cryptocurrency adoption has increased significantly. The adoption rate of blockchain-based technologies has surpassed the Internet adoption rate in the 90s and early 2000s. As this industry has grown significantly, so too has the instances of crypto scams. Numerous cryptocurrency scams exist to exploit users. The generally limited understanding of how cryptocurrencies operate has increased the possible number of scams, relying on people’s misplaced sense of trust and desire for making money quickly and easily. As such, investment scams have also been growing in popularity. Mirror Trading International (MTI) has been named South Africa’s biggest crypto scam in 2020, resulting in losses of $1.7 billion. It is also one of the largest reported international crypto investment scams. This paper focuses on a specific aspect of the MTI scam; an analysis on the fund movements on the blockchain from the perpetrators and members who benefited the most from the scam. The authors used various Open-Source Intelligence (OSINT) tools, alongside QLUE, as well as news articles and blockchain explorers. These tools and techniques are used to follow the money-trial on the blockchain, in search of possible mistakes made by the perpetrator. This could include instances where some personal information might have been leaked. With such disclosed personal information, OSINT tools and investigative techniques can be used to identify the criminals. Due to the CEO of MTI having been arrested, and the case currently being dealt with in the court of law in South Africa, this paper also presents investigative processes that could be followed. Thus, the focus of this paper is to follow the money and consequently propose a process for an investigator to investigate crypto crimes and scams on the blockchain. As the adoption of blockchain technologies continues to increase at unprecedented rates, it is imperative to produce investigative toolkits and use cases to help reduce time spent trying to catch bad actors within the generally anonymous realm of cryptocurrencies.

Creating and Sustaining a ‘Tunnel Vision’ Argument for the Application of Customary Law—A Language Conundrum

Legal practitioners and scholars have argued that customary law in the South African legal context has historically been underpinned by various issues which include, but are not limited to, epistemological misunderstanding, problems of ill-will in the application of this law and intentional underdevelopment. While there is contestation to a degree, the common ground among legal scholars is that the praxis of law in the country is disconnected from indigenous people’s customary beliefs, cultural practices and legal experiences. This has culminated in the training and practice of law in South Africa that lacks inclusion and or a reflection of indigenous people’s worldviews and understandings of law. Naturally, this means that it overlooks the importance of indigenous languages in the understanding and application of the law. Regrettably, the continued intentional or unintentional consumption of law founded predominately on a Euro-American worldview and cultural practices, renders South African law problematic as far as its conceptualisation and application of customary law is concerned. It is at this juncture that the present article argues that language as a cultural artefact is a critical tool in the formulation, teaching, training and praxis of law. For the South African context, indigenous languages, therefore, become a critical tool for this purpose as opposed to the prevailing use of the English language. To this end, this contribution debates African epistemological and indigenous language questions intended to demonstrate their relevance in the formulation, training and application of law in South Africa. Specifically, the article is intended to contribute to the decolonial discourse in the legal fraternity with emphasis on the importance of correct conceptualisation and application of the indigenous people’s customary beliefs, cultural practices and legal experiences.

An overview of cybercrime law in South Africa

The COVID-19 pandemic has accelerated the uptake and use of information communication technologies and led to the digital transformation of different sectors of the economy. For South Africa, the COVID-19 pandemic struck at a time when the South African government had committed itself to leveraging technology for the benefit of its citizens, the private sector, and the public sector. By 2020, South Africa already had in place enabling policy and legal frameworks to assist with the regulation of activities taking place in cyberspace. The increase in broadband access has resulted in the increase of internet users. Due to increase in use of digital technologies and processing of personal data, there has been an increase in cyber-attacks and cybercrimes such as data breaches, identity theft and cyber fraud. Several South African based companies, state owned entities, government departments and citizens have been victims of cyber-attacks. To respond to the growing spectre of cybercrime, the South African government promulgated laws to supplement the existing legal framework. It also operationalised some of the laws which had been passed but had not yet come into operation. This paper gives a summary of the evolution of cybercrime laws in South Africa. It starts off by summarising how common law and the Electronic Communications and Transactions Act addressed cybercrime. The paper then proceeds to discuss the recently promulgated Cybercrimes Act, which is now the primary law criminalising certain online activities. It explores how the various provisions of the Cybercrimes Act address different types of cybercrimes known today. This discussion is aimed at demonstrating that South Africa is no longer a safe haven for cybercriminals.

Analysing the Lived Experiences of Undocumented and Unaccompanied Child Migrants from Zimbabwe to South Africa

Zimbabwe’s socio-economic crisis post-2000 led to the emergence of new forms of livelihoods. Long- and short-term migration emerged as a survival strategy for over a million Zimbabweans who moved legally and illegally to countries such as South Africa, England, Botswana, Namibia, Canada and Australia. While migration in Zimbabwe has mainly been an adult pursuit, post-2000, there has been an increasing number of unaccompanied child migrants. Zimbabwean unaccompanied child migrants in South Africa provide important insights into how the socio-economic rights of children are central to understanding child migration. This article focuses on the lived experiences of undocumented and unaccompanied child migrants from Zimbabwe living in South Africa. It utilises a desk research approach to analyse how the socio-economic rights of child migrants are experienced in Zimbabwe and South Africa. Both states have failed to meet their national and international obligations to protect child migrants. The article highlights various forms of abuse undocumented child migrants from Zimbabwe experience in South Africa. The article concludes that both local and international law in South Africa fails to provide a balance between the competing interests of child protection and child autonomy.

Contemporary trends in the development of public procurement law in South Africa

This paper explores emerging contemporary trends in the development of South Africa’s public procurement law. Using a doctrinal legal analysis, it identifies two main trends in such development post-democratization, one structural and one substantive. It argues that these two trends pose particular challenges to the public procurement system. At the structural level, the paper shows that while law has played a key role in the development of South Africa’s public procurement system right from the outset, it constituted a light touch regulatory regime prior to the constitutional transition in 1994. The changes that the new constitutional dispensation brought about necessitated an adjustment in the regulation of public procurement as well. The development of public procurement law to effect such adjustment has, however, created a fragmented, uncoordinated and overly burdensome regulatory regime. At the substantive level, the paper argues that law has not managed to effectively create a framework for the use of public procurement for social policy purposes with specific reference to the pursuit of equality. Based on these findings, the paper argues that legal reform is urgently needed in order to avoid law undermining the public procurement function in South Africa.

Performing IVF for surrogacy before confirmation of the surrogacy agreement by the court: a critical analysis of recent case law in South Africa

The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surrogacy agreements before the start of the surrogate pregnancy. If such confirmation is granted by the court, actions taken in the execution of the surrogacy agreement are lawful, and the agreement itself is enforceable. Against this background, the question has arisen: is it lawful to perform in vitro fertilisation (IVF) before confirmation of the surrogacy agreement? This is a salient question: In circumstances where egg retrieval needs to take place in anticipation of surrogacy, and where sperm is available but where the surrogacy agreement has not (yet) been confirmed, there are significant clinical advantages to first creating embryos through IVF before cryopreservation—rather than cryopreserving the eggs. However, in the recent case of Ex ParteMCM, the court held that it is unlawful to perform IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed. The correctness of this decision is comprehensively analysed with reference to the two main statutory instruments that are relevant to the topic: the Children’s Act and the Regulations relating to the Artificial Fertilisation of Persons. This article concludes that Ex ParteMCM interpreted the Regulations incorrectly, and that on a proper construction of both the relevant statutory instruments, the law does not prohibit IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed.

Condemned by desire: miscegenation, gender, and eroticism in South Africa’s Immorality Act

ABSTRACT The Mixed Marriage Act of 1949 is regarded as the first law of South Africa’s apartheid regime. This criminalised interracial marriages, regulating intimacy under the amended Immorality Act (1950) with the aim of organising the public sphere and preventing miscegenation. In the present article, I analyse two cases involving interracial couples and alleged lovers. I argue that this system of exclusion refounded the State, managing gender and sexuality through race and racism in order to avoid miscegenation. Although the apartheid system was internationally known, via its public face, as creating segregation between whites and blacks, I claim that vigilance and control of intimacy and domestic space, based on gender and sexuality, were part and parcel of the management of race and racism. Following Coetzee, I understand apartheid as a form of containment of interracial desire. In this analysis, Brazil appears as a counterpoint to this project: sometimes implicitly, sometimes explicitly. My objective here is to contribute to the understanding of processes of regulation of intimacy and public space in the Global South.