Legislation In South Africa Research Articles

A framework towards the implementation of freedom of information legislation in South Africa

Purpose The purpose of this study was to investigate a framework for the implementation of freedom of information (FOI) legislation in South Africa, against Article 19’s nine principles of FOI legislation. Design/methodology/approach This qualitative study used semi-structured interviews to collect data from six experts selected by means of the snowball sampling technique and content analysis. The study used a modified Delphi design consisting of two rounds of interviews. Findings The results showed that little effort is made by government officials to demonstrate commitment to the implementation of FOI legislation. Practical implications The passing of FOI is expected to reduce corruption, increase public participation, reduce the level of secrecy and increase transparency and openness. This is not the case as the implementation of this socioeconomic right in South Africa is faced by numerous challenges, such as a lack of political will, secrecy laws providing for the opposite of what the FOI legislation seeks to achieve, poor legislative interpretation and a lack of clear policies. The study proposes a framework aimed at addressing these challenges. Originality/value The study provides a framework for the implementation of FOI legislation. The framework was developed under the guidance of Article 19 principles of freedom of information legislation.

Consumer protection legislation in South Africa and its impact on promotional strategies: Perspectives of retail businesses

In the past, unfair business practices resulted in consumers suffering a host of abuses. Poverty, unequal distribution of income and high litigation costs presented a challenge for consumers seeking justice. The Consumer Protection Act 68 of 2008 (CPA) was enacted to protect consumers and prohibit unfair business practices. It also placed restrictions on promotional methods. The overall aim of this paper is to evaluate, through the findings from an empirical study, how consumer protection legislation in South Africa impacts on promotional strategies of retail businesses. Using a qualitative methodology, the study evaluated the implications of the CPA for retail businesses in South Africa. It firstly, explored specific aspects pertaining to which provisions of the CPA affect the promotional efforts of retail businesses (small to medium) in Durban; and secondly, it determined the implications of the implementation of the CPA on promotional strategies of small to medium retail businesses in the Durban area. Eighteen structured interviews were conducted with marketing managers and business owners. The findings from the study identified several provisions of the CPA that have an impact on the way promotions are being conducted currently. The study also showed that preferences for promotional tools are based on cost and on reaching larger target audiences quickly, and that more expensive and labour-intensive measures were adopted to address the restrictions of the CPA. Keywords: CPA, retail businesses, labour-intensive

An analysis of the possibility to implement a CSI tax levy in South Africa: Lessons from Mauritius

"The voluntary approach to corporate social responsibility has failed in many cases."1 The Mauritius corporate social responsibility (CSR) landscape changed profoundly in 2009 with the addition of sections 50K and 50L to the Income Tax Act 16 of 1995 (Mauritius), making contributions to a CSR fund mandatory. Before 2009, the Mauritius government repeatedly called on the private sector for assistance to overcome unemployment, poverty, and other challenges in their country. Due to an unsatisfactory response to their request and factors such as poverty, and high unemployment levels, the government made the drastic decision to implement mandatory CSR legislation. The main objective of this study was to investigate the factors contributing to the enactment of mandatory corporate social responsibility (CSR) legislation in Mauritius and the possibility to implement similar legislation in South Africa. An analysis of the Mauritius tax legislation and relevant government publications scrutinised, by way of a literature review, revealed that what is referred to as mandatory CSR, is in fact mandatory corporate social investment (CSI). The study further indicated that the same socioeconomic factors as those present in Mauritius prior to 2009 and worse apply to South Africa. An analysis of South African CSI practices and contributions indicated that an additional R3.111 billion could have been raised if a 2 per cent CSI levy was applied to after-tax profits of certain categories of companies, as in Mauritius. This represents 1.2 per cent of the South African Department of Social Development's 2022/2023 budget. It is recommended that similar legislation should be considered for South Africa. It will ensure that all profitable companies in South Africa contribute to CSI and that more funds will be available to address some of the socio-economic needs. The study addressed the gap in empirical research done in Mauritius after 2018 and 2020 and is also the first comparative study conducted on this topic regarding South African law.

An analysis of legal accountability for artificial intelligence systems in the South African financial sector

While the deployment and use of Artificial Intelligence Systems (AIS) have continued to grow at an exponential rate in the world, and they are generally viewed as positive for economic growth and productivity. However, there is a concern about how to hold AIS legally liable and responsible just as a person. This is said against the backdrop that AIS has become indistinguishable from humans and as such they should be entitled to a status comparable to natural persons in order for them to enjoy legal rights and incur liabilities like juristic and natural persons. Especially in the financial sector where the use is ubiquitous in virtually all aspects of the sector from credit assessment to credit rating, credit and loan facilities, customer services, and decision-making for and on behalf of corporations. The situation in South Africa is precarious because, presently, the AIS has not been granted clear legal status in any South African statutes. It is pertinent to point out that while there is no legislative framework dealing specifically with AIS and related legal issues in the financial sector such as the banking industry, a raft of legislation is in place to regulate potential risks posed by the use of AIS in the sector in South Africa. These include legislation in the areas of financial and banking regulations. The problem is the fragmented way the regulations and legislation have been approached. Notably, the financial sector in South Africa uses AIS for their operations and as such sometimes, AIS commits errors, omissions, etcetera, making them eligible for accountability. But the problem still remains that there is no single legislation in South Africa upon which AIS will be held legally accountable save for fragmented pieces of legislative frameworks which have accountability components, but these are not adequate. It is against the backdrop of this specific accountability vacuum for AIS in the financial sector that this article explores germane provisions of the Constitution of the Republic of South Africa 1996 (Constitution) as well as existing fragmented legislative frameworks and foreign law jurisprudence where AIS accountability is well developed and have the potential to hold AIS responsible for their omissions or commission was explored and useful lessons are drawn accordingly.

Potential solutions for increasing resilience of the drinking water supply through the public-private partnership in a South African municipality.

There has existed a need to increase the resilience of the drinking water supply in Makana Local Municipality in the scope of the 2018-2019 drought and the municipal water supply outages. A combination of the know-how and mandates of local government and the private water-retail sector could provide solutions. In order to achieve successful imple-mentation, the authors present here tools from the disaster risk management legislation in South Africa for operational-ization of this public-private partnership. These are tools based on Chapter 5, part 1, paragraphs 42 (1d) and Chapter 5, part 2, section/paragraph 47 (1a) i-iv of the Disaster Management Act no. 57 of 2002. Regulations for the recruitment and participation of volunteers in disaster risk management should be applied through the establishment of the volun-teer units and the component for drinking water provision. The use of volunteer units with the engagement of the private sector would provide additional tools for the implementation of the preparedness and mitigation measures for drinking water provision in Makana Local Municipality. Local solutions for increasing the resilience of drinking water provision are available and identified based on the modeling work of a container solution. Potential implementation of that con-tainer solution for increasing resilience of drinking water provision would require an investment of 6.81-13.00 percent of the 2017-2019 annual budget of Makana Local Municipality. At any given time in 2018, the probability of the emergency treatment activation would be about 33.4 percent in Makana Local Municipality. An example of the ad hoc management about the provision of borehole water from 2019 indicates that planning is critical to success of the increased resilience initiatives. Onsite storage of water during the constant supply might be necessary to ensure treatment and drinking water provision.

Rethinking and reimagining corporate social responsibility as legislation in South Africa using a qualitative document analytics approach

South African legislation does not obligate companies to fulfill their corporate social responsibilities. Understanding the impact of corporate social responsibility (CSR) on social inclusivity is crucial in ensuring trade-offs between companies and the citizens residing where development takes place. There is a need for a national consensus on a CSR policy framework within a social cohesion and nation-building compact. The inclusion of the legislation for ensuring compliance towards fulfilling the purpose of the country’s sustainable development agenda is fully referred to in the discussion. The unparalleled position requires collective energies with the public to actualize strategies. This chapter underpins the importance of having CSR as a standalone legislation and seeks to contribute to the world of science by leveling the ground with the rhetoric discussion. The document analysis was the backbone for a qualitative research methodology where the related intricacies were revealed. The research will embark on an empirical investigation to publish evidence-based results based on the document analysis and legislative framework. The gap of a lack of legislation in South Africa has been identified notwithstanding the related legislation, which corroborates the direction the country is taking towards CSR. The study contributes to the body of knowledge on sustainable development on the transformation agenda. However, this study is limited in the sense that it did not embark on a largescale data collection from the implementers and the communities for empirical research which could be measured. This shall be employed in future research for evidence-based information and knowledge sharing.

Liberalising cannabis legislation in South Africa: Potential public health consequences for adolescents and pregnant women

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Key role-players’ perceptions of the current salt legislation in South Africa: opportunities and challenges

Objective: A study was undertaken to determine the perceptions of key role-players regarding challenges and opportunities to move the South African salt-reduction strategy forward. Design: The study had a qualitative, exploratory design using in-depth, semi-structured interviews. Setting: South Africa. Subjects: A total of 12 participants from various fields within the salt-reduction strategy environment, including academia, government and policy-related institutions, research sector and non-governmental organisations, took part. Outcome measures: Consumer knowledge, consumer education programmes, multi-sectoral collaboration, research efforts and strategy recommendations were noted. Results: Overall perceptions of the current salt-reduction strategy in South Africa were positive. Most of the participants agreed that the current strategy is the best approach to reduce the salt intake of the South African population. Participants strongly believed, however, that the strategy is not currently reinforced and that the initial momentum is lost. Concerns were raised regarding the absence of consumer-awareness campaigns, the population’s lack of knowledge regarding salt intake and its relation to health, and the challenges around the monitoring of salt/sodium in processed foods. Participants also highlighted the lack of current studies in this field as well as existing data to be used for baseline studies. Conclusions: South Africa’s current salt-reduction strategy is the correct approach to decrease the population’s salt intake. The initial phase of implementing the strategy has been successful, but the current perception is that government is not following through with this strategy. Several key areas that are needed for this strategy to succeed are being neglected.

‘Miserable, laborious, and short’: The lives of animals

Animal welfare legislation in South Africa is deficient, especially in relation to farm animals reared for ingestion by human beings. That being so, this article analyses aspects of public international law, administrative law, constitutional law and interpretation of statutes that may contribute towards affording more legal protection to such animals. An overview of recent case law highlights that the Constitutional Court has mandated a shift away from the traditional laissez-faire legal attitude to human use of animals towards one that requires enhanced protection of their interests. To that end, extensive legislative reform is necessary to rectify the deficiencies of the present system.

Advances in the Regulation of Weed Biological Control in South Africa

Regulation of biological control (biocontrol) is essential to ensure its continued safety and to enhance its acceptability as a key contributor to the management of damaging invasive alien plants in South Africa. Local researchers were concerned that regulators may become risk averse and over-cautious, thus preventing introductions of safe biocontrol agents, as bureaucratic impediments have contributed to the decline in the number of biocontrol releases in several other countries. In South Africa, the introduction of a transparent and inclusive review process has averted these concerns. Legislation in South Africa enables departments concerned with protecting environmental and agricultural resources, to work together to regulate potential risks. An interdepartmental committee, advised by independent specialists, facilitate the review of research into the safety of potential biocontrol agents. Regulators have reviewed and timeously assessed 26 potential biocontrol agents between 2013 and 2020. This has ensured that the considerable benefits from safe biocontrol agents are available for management of some of South Africa's worst invasive alien plants. We review the system in South Africa and suggest possible improvements to the regulatory framework.

Reimagining employee representation in the context of collective bargaining under the Labour Relations Act 66 of 1995: The imperative of substantive equality and decent work

Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.

Compliance with freedom of information legislation by public bodies in South Africa

In South Africa, freedom of information (FOI) is entrenched in section 32 of the Constitution, which guarantees every citizen the right of access to any information held by the state or by any other person that is to be used for the protection or exercise of any right. The Promotion of Access to Information Act (PAIA) is the law that gives effect to section 32 of the Constitution. Regardless of a remarkable trend towards the adoption of FOI laws, international trends have shown this does not automatically translate into fulfilment of people's right to information. This study utilised mixed method research through the explanatory sequential design to assess compliance with FOI legislation by public bodies in South Africa, with a view to develop a model for implementation of FOI. The study first conducted a quantitative study by analysing the reports of the South African Human Rights Commission from the reporting years 2006/07 to 2016/07 to assess compliance with sections 14, 15, 16, 17 and 32 of the PAIA. Thereafter, a qualitative study through interviews with purposively chosen participants was conducted to substantiate the findings of a quantitative study. Key results suggest that over the years, there were problems in the implementation of the FOI legislation in South Africa and its use was limited. Where implementation has taken place, it has been partial and inconsistent. The responsibility for the implementation of FOI legislation in most public bodies is assigned to legal departments that do not have knowledge of what records are created, and where and how they are kept. With regard to compliance, in terms of the degree of comparison, the situation was better in national departments, worse in provincial departments and worst in municipalities. The study recommends the establishment of an information governance unit to implement FOI in public bodies. Failure to assign responsibility to a relevant unit would perpetuate the non-compliance with FOI legislation by public bodies in South Africa. A model for the implementation of PAIA within a public body is suggested.

The intersection between taxation and insolvency — The South African Revenue Service’s preference

When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.

The impact of constitutional property law on insolvency law in South Africa

AbstractIt is common for insolvency legislation to interfere with the property rights of debtors, creditors and third parties in pursuit of its purpose to provide an orderly and fair resolution to insolvency‐related problems. However, the South African property clause, Section 25 of the Constitution, prohibits arbitrary interferences with vested property interests. In light of this, this article focuses on the application of Section 25 to insolvency law in South Africa. The question is whether interferences with property rights in terms of insolvency legislation qualify as deprivations of property for constitutional purposes and, if so, whether they comply with the relevant validity requirements. This article investigates this question by explaining the interaction between insolvency law and constitutional law in general, followed by a closer look at the application and operation of the property clause in particular. Thereafter, three examples from case law are discussed to illustrate the role of constitutional property law in evaluating the effects of insolvency legislation in South Africa. The conclusion is drawn that, as long as the relevant requirements are met, the norms underlying the property clause do not hinder the development and implementation of legitimate and necessary insolvency procedures that could impact on vested property rights.

LIMITATION OF THE PRINCIPAL-AGENT THEORY TO EXPLAIN THE PROBLEM OF NON-COMPLIANCE IN SOUTH AFRICAN MUNICIPALITIES

The obstinate problem of non-compliance with municipal finance legislation in South Africa has been largely explained as a principal-agent problem. Accordingly, the municipal officials as agents are depicted as potentially non-compliant, dishonest and corrupt. Notably, measures that have been established to address problems of non-compliance have been disproportionately focused towards municipal officials. This intrinsic bias against municipal officials is flawed and inadequate for the context and dynamics at play in the problem of non-compliance with municipal finance legislation in South African municipalities. In particular, the assumption that the non-compliance occurs because the municipal councils are unable to effectively control the behaviour of the bureaucrats is not borne out by reality. This article aims to highlight the theoretical limitations of the principal-agent theory in order to explain the problem of non-compliance with municipal finance legislation in South Africa. Drawing on reports of the Auditor-General, the article shows the contribution of the municipal council in the problem of non-compliance. The article concludes that municipal councils are not unable but unwilling to exercise oversight obligation and duty and thus must be regarded as complicit and culpable in the problem of non-compliance in South African municipalities. Keywords: Auditor reports, Municipal councils, Non-compliance, Oversight, Principal- Agent Theory

Allegations of misuse of African DNA in the UK: Will data protection legislation in South Africa be sufficient to prevent a recurrence?

Concerns have been raised around the alleged commercialisation of South African genetic material by various research institutes nationally and abroad. We consider whether the Protection of Personal Information Act in South Africa will conflict with or complement existing protections in health law and research ethics. The Act is not applicable to de-identified samples that cannot be re-identified but we question whether genetic samples can ever be truly de-identified. The research participants in this matter provided consent for use of their samples for research but did not consent to commercialisation by global research institutions, and neither did the researchers. We suggest that consent models incorporating broad consent as an option should include explicit discussions around benefit sharing and commercialisation. Mistrust between researchers and participants impedes scientific research and can harm relationships built up over the years between South African researchers and local communities.

Monitoring and implementation of salt reduction initiatives in Africa: A systematic review.

This systematic review aims to document salt consumption patterns and the implementation status and potential impact of salt reduction initiatives in Africa, from studies published between January 2009 and November 2019. Studies were sourced using MEDLINE, Embase, Cochrane Library electronic databases, and gray literature. Of the 887 records retrieved, 38 studies conducted in 18 African countries were included. Twelve studies measured population salt intake, 11 examined salt level in foods, 11 assessed consumer knowledge, attitudes, and behaviors, 1 study evaluated a behavior change intervention, and 3 studies modeled potential health gains and cost savings of salt reduction interventions. The population salt intake studies determined by 24‐hour urine collections showed that the mean (SD) salt intake in African adults ranged from 6.8 (2.2) g to 11.3 (5.4) g/d. Salt levels in foods were generally high, and consumer knowledge was fairly high but did not seem to translate into salt lowering behaviors. Modeling studies showed that interventions for reducing dietary sodium would generate large health gains and cost savings for the health system. Despite this evidence, adoption of population salt reduction strategies in Africa has been slow, and dietary consumption of sodium remains high. Only South Africa adopted legislation in 2016 to reduce population salt intake, but success of this intervention has not yet been fully evaluated. Thus, rigorous evaluation of the salt reduction legislation in South Africa and initiation of salt reduction programs in other African countries will be vital to achieving the targeted 30% reduction in salt intake by 2025.

A framework for data security, privacy, and trust in “consumer internet of things” assemblages in South Africa

AbstractThe Internet of Things (IoT) brings opportunities and challenges to humankind. IoT technology makes it possible to connect all of a person's devices to create a smart ecosystem. However, IoT has also raised issues of data security, privacy, and trust to the consumer. In a world where cybercriminals have enormously increased, people need to be aware of the advantages, and the risks that come with these technological advances. This study conducted a literature review to develop a framework to address the issues of data security, privacy, and trust in consumer IoT (CIoT). The study suggested an integrated and holistic framework that promotes safer adoption of CIoT. The researchers concluded that for CIoT to thrive, safety is crucial, and all the stakeholders in the IoT assemblage need to ensure the protection of consumers. The suggested framework may assist in the protection of consumers of IoT, data trust, as well as trust in the CIoT assemblage. It covers the concerns, experiences, and adaptations of consumers of IoT regarding data security, privacy, and trust concerning technology and privacy legislation in South Africa.

Young people’s discursive constructions of fatherhood in South Africa

ABSTRACT The voices of young people remain, for the most part, under-considered within research on South African fathers. The present study relies on photo-elicitation interviews to explore how isiXhosa-speaking adolescents construct fathering roles and responsibilities in South Africa. Using discursive psychology, it was found that participants drew on the ‘Essential Fathering’ and ‘Social Fathering’ discourses to construct South African fatherhood. The discourses appeared to valorize biological fatherhood situated within the nuclear family, while - at the same time - valuing socialized paternal formations that need not be constituted biologically. It is suggested that although genuine paternal abandonment should not be excused, policy, parental programmes and legislation in South Africa must consider the voices of young people as well as the myriad parenting modalities that exist outside of hegemonic family forms.

Understanding the basics of cannabidiol from cannabis to apply to therapeutics in epilepsy.

The compounds present in cannabis have been in use for both recreational and medicinal purposes for many centuries. Changes in the legislation in South Africa have led to an increase in the number of people interested in using these compounds for self-medication. Many of them may approach their general practitioner as the first source of information about possible therapeutic effects. It is important that medical professionals are able to give patients the correct information. Cannabidiol (CBD) is one of the main compounds in cannabis plants, and there is evidence that it can successfully treat certain patients with epilepsy. This review looks at the most recent evidence on the use of CBD in the treatment of epilepsy and explores the mechanisms behind these beneficial effects.