Limitation Clauses Research Articles

Mandatory Vaccinations at the Workplace during Covid-19 Times in South Africa: Lessons Learnt for Future Pandemics

The purpose of the study was to analyse mandatory vaccinations at the workplace during COVID-19 times in South Africa. COVID-19 was first identified in March 2020 in South Africa. The National State of Disaster was ended by the President on 4 April 2022. However, while economic activities were gradually opening to revive the economy, some employers had issued mandatory vaccinations to all their employees at their workplaces. This was regarded in some quarters as a violation of the rights of workers. This paper however argues that there was a misunderstanding on whether any law authorised these mandatory vaccinations. The study found that forcing employees to vaccinate against their will, despite World Health Organisation (WHO) ethical considerations against mandatory vaccinations, was a violation of their constitutional right to security in and control over their bodies. Furthermore, it found that this violation was not justifiable under the limitation clause. The paper concluded that no law clearly authorised employers to apply mandatory vaccinations at the workplace. The authors hope that employers learnt some lessons from the implementation of COVID-19 mandatory vaccinations. The paper recommends that mandatory vaccinations should not be applied for future pandemics at the workplace without basis or authority of law. The study further recommends that government must develop clear laws and guidelines to regulate mandatory vaccinations for future pandemics in the workplace. The paper exposes the weaknesses of mandatory vaccinations which were applied by employers to employees at their workplaces during COVID-19 times in South Africa. The paper contributes to the growing constitutional and legal discontent of mandatory vaccines in South Africa and beyond to guide governmental intervention in future pandemics as individual rights interface with general health safety. Keywords: COVID-19, Mandatory Vaccinations, Employees’ rights, Employers, National State of Disaster, Workplace, Lockdown.

Exploring the Social Impact of the Short-Stay Market (SSM) in Regional Areas: An Empirical Study

The discourse on microentrepreneurs and their involvement in the short stay market (SSM) was non-existent until 2008. While several concepts and constructs have been developed and empirically tested since 2009, many of them relate to economics, leaving the social, cultural, and environmental factors underdeveloped. Thus, this study aimed to fill the gap and identify and assess the social impact of the short-stay market (SSM) in a regional area. The study included 16 face-to-face interview sessions conducted with 18 participants, and the Leximancer software was employed to analyse the data. The study revealed that the social impact on SSM is not generic, rather pluralistic, multidimensional, and dynamic. The study also found that the limitation clause instituted by the council is a direct disconnect between the council and property owners/managers. Furthermore, despite ample opportunities provided by the short-stay market (SSM) in regional areas, encumbrances cannot be overlooked. Therefore, there is a need for a comprehensive approach to understand the social impact on policy frameworks in regional areas.

Ochrona prawa do prywatności w postępowaniu kontrolnym Najwyższej Izby Kontroli

The hope for verifying the actions of state authorities, both through social control and through the activity of specialized bodies such as the Polish Supreme Audit Office (Najwyższa Izba Kontroli), is one of the main elements of democratic states under the rule of law. During an audit procedure, it is necessary for auditors to have access to data which make a suitable analysis and evaluation of the audited activity possible. Such access may constitute a violation of the right to privacy. Against this background, the article seeks to address the following issue: does the violation of the right to privacy for the purposes of the Supreme Audit Office proceedings meet the requirements of the limitation clause under the Polish Constitution of 1997?

Precluding the Wrongfulness of Derogations of International Human Rights Instruments

Abstract Primary and secondary norms represent complementary systems of governance, one specifying the substantive obligations of states and the other imposing consequences upon deviation. Treaties which contain both primary and secondary norms generally operate as self-contained regimes as they oust the application of secondary norms under customary international law, such as those that might be invoked to justify deviations. Conflict, however, arises when the treaty norms seem to overlap with their customary counterpart, while remaining technically disjunct in their form. Derogation and limitation clauses in several international human rights instruments provide conditions in which a violation would be justified. On the other hand, customary international law also prescribes circumstances in which violations cannot be considered wrongful. This article addresses whether the existence of the former in treaties precludes the invocation of the latter. It also highlights the difficulty which arises in the interpretation of those instruments in which such derogation and limitation clauses are absent.

Casting a Constitutional Light on the Cultural Defence in South African Criminal Law

Abstract South Africa’s criminal courts have often dealt with cases where accused who committed culturally motivated crimes tried to escape criminal liability through a so-called “cultural defence”, a defence that does not currently exist in South African criminal law. However, most of the case law dealing with this matter predates the Constitution of the Republic of South Africa, 1996. Consequently, the Constitution’s cultural and religious freedom rights can be used to justify the formal recognition of a cultural defence in South Africa’s criminal law. Simultaneously, the Constitution contains limitation clauses that could counteract such a step. This article evaluates these contentious arguments and concludes that the conflict between the common law and African customary law in South Africa’s criminal law can be resolved by aligning the indigenous beliefs and customs in African customary law to the values underpinning the Constitution.

Liability Limitation of PeduliLindungi Applications in the Convergence Dynamics of Telematics Law

PeduliLindungi application, there is a clause limiting the liability by the electronic system operator, which in outline states that PeduliLindungi is not responsible for any losses that arise due to events and/or causes beyond the control and/or ability of the organizer or caused by any violation or unauthorized access to PeduliLindungi. This research aims to examine the clause on Limitation of Liability of Care for Protect Applications in the Convergence Dynamics of Telematics Law. The research approach method used in this research uses a statutory approach and a conceptual approach. The result is that the electronic system operator from the PeduliLindungi application is related to the liability limitation clause and is no longer based on Law Number 11 of 2008 concerning Information and Electronic Transactions, Article 15 Paragraph (2). Normatively in the author’s understanding, the clause limiting the liability of this PeduliLindungi application is based on Article 15 paragraph (3) of Law Number 11 of 2008 concerning Information and Electronic Transactions. So actually, there is nothing wrong with the clause limiting the liability of the PeduliLindungi Application if it refers to the principle of freedom of contract and as long as it can be legally proven that the problems that occur are part of the plain error or negligence of the user. However, in essence, the organizer of the electronic system of the PeduliLindungi application should not turn a blind eye to the possibilities that can become a problem and harm users in the operation of the electronic system that they run.
 Keywords: limitation of liability, PeduliLindungi application, telematics law

To Derogate or to Restrict? The COVID-19 Pandemic, Proportionality and the Justificatory Gap in European Human Rights Law

In this paper, I offer an analytical and normative framework to re-visit the question of whether state parties should derogate from the European Convention on Human Rights (ECHR) in order to combat the COVID-19 pandemic via harsh ‘lockdown’ measures. It is three-pronged. First, I show that the predominant debate on the (non-)derogation question is informed by a textual approach to adjudication, which severely limits the analytical and evaluative horizon for addressing the issue. Most importantly, it cannot address one salient fact about the effects of lockdown measures, namely their highly disproportionate effects on vulnerable groups and minorities. Second, I argue that proportionality assessment should be the basis for determining whether state parties ought to derogate or not. This is because proportionality’s very purpose is in part to track the effects of state interferences on minorities and vulnerable groups by measuring the disproportionate burden imposed on them. It is also because proportionality assessment has very different requirements between limitation clauses built into the relevant Convention articles (e.g. Article 5, Articles 8–11) and the derogation clause (Article 15) under the ECHR. Surprisingly, while the emerging literature almost always mentions proportionality as an important component of the analysis, it does not investigate the extent to which each regime (derogation or limitation) better performs it, and why. Third, I draw from the philosophical literature on the ‘right to justification’ to clarify the egalitarian and justificatory function of proportionality. Unlike derogation, limitation clauses have a much higher and systematic requirement of justification, which makes the case for non-derogation clearer and stronger.

THE CONSTITUTIONALITY OF THE STATE’S INTERVENTION WITH THE PRACTICE OF MALE TRADITIONAL CIRCUMCISION IN SOUTH AFRICA

This article analyzes the constitutionality of the state’s intervention with the practice of male traditional circumcision in South Africa. The state intervened in the practice of traditional circumcision by promulgating legislation aimed at providing the observationof health standards in traditional circumcision, the issuing of permission for the performance of a circumcision operation and holding of circumcision schools. Provincial statutes are promulgated the Application of Health Standards in Traditional Circumcision Act 6 of 2001; Free State Initiation Schools Act 1 of 2004 and Northern Province Circumcision Schools Act 6 of 1996. Recently, in 2005 the state introduced the Children’s Act 35 of 2005, to give effect to the Constitutional rights of children by prohibiting children below the age of 16 from being subjected to traditional circumcision that is detrimental to their well-being and also protecting them from discrimination, exploitation and from any other physical, emotional or moral harm. The first part of this article discusses the initiates’ cultural right to practise traditional circumcision. The second part considers other constitutional rights to which the initiates are entitled. The final section analyzes the constitutionality of the state’s intervention with the practice of traditional circumcision.On the question whether the state’s legislative intervention is constitutional, this article applies the internal limitation in section 30 and 31 of the Constitution and the general limitation clause in terms of section 36. The article concludes that the state’s legislative intervention, in the practice of traditional circumcision, is justifiable both in terms of internal limitation in section 30 and 31(2) and the general limitation clause of section 36.

What Oakes should have said (or how to read a limitations clause)

What Oakes should have said (or how to read a limitations clause)

Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part Two

Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants officials of the South African Revenue Service (SARS) access to taxpayers’ private and confidential information by, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article (see Journal for Juridical Science 2021(1)) argued that the TAA is a “law of general application” as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that, in terms of the threshold stage of analysis prescribed by this provision, the exercise of the powers conferred by sec. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. In this Part Two of the article, it will be hypothesised that, although the search and seizure powers in sec. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought, in terms of the second stage of enquiry that is triggered by the findings in Part One, nevertheless to pass muster under sec. 36(1) of the Constitution, because of the justifiability of the limitation imposed on the right to privacy by these provisions.

A SELECTION OF CONSTITUTIONAL ASPECTS THAT IMPACT ON THE MENTALLY DISORDERED PATIENT IN SOUTH AFRICA

This article examines a selection of constitutional aspects that impact on the mentally disordered patient in South Africa. There are specific fundamental human rights protected in the Bill of Rights that are applicable to the psychiatric and psychology professions and the mentally disordered patient. The first is section 36 of the Constitution – the general limitation clause. Further rights include the right to dignified and humane treatment, freedom from discrimination in terms of access to all forms of treatment, the right to privacy and confidentiality, the right to protection from physical or psychological abuse and the right to adequate information about their clinical status. These rights should ideally include efforts to promote the greatest degree of self-determination and personal responsibility of patients. Since 1994 many farreaching improvements have been made to the South African health system. The legal and policy framework described in this article is still relatively new and is a major achievement. However, much remains to be done to implement policies and to ensure that the vision of the protection of the mentally disordered patient becomes a reality for people regardless of factors like mental disorder. Because this is an article of limited scope, focus is placed on a discussion of sections 10, 12(2)(b) and 14 of the Constitution.

Limitation Clauses and Constitutional Transformation: The Case of the New Arab Constitutions

AbstractFocusing on the constitutional changes undergone since 2005 in Iraq, Sudan, Morocco, Tunisia and Egypt, this article explains how the constitutional limitation clauses affected the respective material constitutional transformations. The explanatory value of the limitation clauses is tested, with possible causalities (as well as non-causal relations) explored through a case study. Generalizing research arguments are offered, theorizing about the material constitutional transformation processes in authoritarian and post-authoritarian scenarios. The research arguments shed light on the limitation clauses’ potential to reveal the policy intent underlying the constituent power, as well as their negative implications for a proper democratic consolidation, their effects in keeping dynamics of political immobilism, and their consequences in terms of favouring instances of authoritarian regression.

Impoverishment of the Poor and Derogation of Human Rights During the Covid-19 Pandemic in Indonesia: Testing the Emergency Measure and Siracusa Principles in Large-Scale Social Restriction.

This study examines human rights restrictions in the Large-Scale Social Restrictions (or PSBB) during the Covid-19 outbreak in Indonesia that do not follow the Siracusa Principles emergency measure and limitation clause. PSBB resulted in a prolonged human rights crisis due to ineffective policies, manipulated data, and inadequate medical equipment. The author discusses the impact of Large-Scale Social Restrictions on socio-economic and socio-political rights and the government’s failure to overcome the Covid-19 outbreak with an interdisciplinary perspective. Findings from studies on the number of Covid-19 cases contracted and the high mortality rate are also presented. This study notes the consequences and the relationship between the ineffectiveness of Large-Scale Social Restrictions and human misery.

Limitation Clauses at the African Regional Human Rights System and Tanzania: Reflection of Judicial Decisions

Enjoyment of fundamental human rights as guaranteed by the African Charter or Constitution of Tanzania is subject to limitations which are set out by the ordinary law made by parliament. However, case law has demonstrated that no provision of the limitation clause in the African Charter or Constitution may be interpreted as permitting a State to suppress enjoyment or exercise of the rights and freedoms to a greater extent than reasonably required. Which tests or criteria should guide the court or other authorities depends on the instrument in question. Both the African Charter and the Constitution of Tanzania do not have clearer guiding criteria. Courts have attempted, nevertheless, to come up with criteria or tests by borrowing from international, other regional and domestic human rights systems. This article reviews case law from the African Court and Tanzania and finally proposes the adoption of the three-tier test in resolving tension when at issue before the Court is whether or not a legislation or conduct is saved by Article 30(2) of the Constitution which allows limitation of human rights. The benefit of adopting this approach would enable domestic courts to be consistent when deciding human rights petitions. Key Words: Limitation Clauses, Claw-back clauses, proportionality principle, necessary in a democratic society.

A counterbalance between the unions right to disclosure of information and the employers right to the privacy or confidentiality of information

The issue of disclosure of information during negotiations has been a concern to both unions and employers. Unions have the right to have access to information that is in possession of the employer, while the employer has the right to refuse to disclose such information if the disclosure will affect their privacy or if the information requested is confidential and the disclosure will negatively impact on the competitive edge of the business. Despite the fact that access to information is protected in the law, the union can only request information that is relevant to the discussion before the parties. A refusal by the employer to provide a union with relevant information can negatively impede the prospects for a successful collective agreement or an amicable settlement of a labour dispute. The point of contention is that employers may be concerned that very important information like trade secrets may land in the hands of competitors if precautionary measures (like refusing to disclose such to the trade union and other parties) are not taken to guard against their disclosure. Then the question arises as to how to strike a balance between the refusal of the employer to disclose the information required by the union on the basis that the information is private and/or confidential, and the union’s right to have access to such information. It is argued that the employer’s right to privacy or confidentiality may be tempered with in terms of the limitation clause of the Constitution. This article further addresses the question of what can constitute acceptable reasons for the employer’s refusal to provide the union with the requested information, and the effects of such refusal on the capacity of a union to negotiate effectively. Key words: disclosure, confidentiality, privacy, access to information, negotiations.

Gloss to the Judgement of the Court of Justice of the European Union in Case C-524/15, Criminal Proceedings against Luca Menci

This gloss discusses the position of the Court of Justice of the European Union taken in the judgment passed on 20 March 2018 in the case of Luca Menci (C-524/15) in reference to the restrictions of ne bis in idem principle. The main thesis of the Court concerned the admissibility of restrictions of ne bis in idem based on the principle of proportionality as a limitation clause and its accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis of the right not to be tried or punished twice in Article 4 Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms allows us to formulate opposite conclusions. The application of the balancing test as a limitation clause for ne bis in idem, finds no support in the case-law of the ECtHR too. According to the Author, the position taken in Menci infringes Article 52(3) of the Charter of Fundamental Rights, according to which the meaning and scope of the rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms shall be at least be the same.

Rule of Law and the Doctrine of Proportionality; Appraisal, Rational and Validation

In Germany, many researchers – including judges – believe that the idea of proportionality should stem from the notion of Rechsstaat. The term, when translated into English, is Rule of Law, and “Etat de Droit” in French. Applying the rule of law as a reason for adopting proportionality as a factor for limiting constitutional rights via the constitutionality of sub-constitutional law has also been implemented by other legal organizations. To understand the liaison connecting the rule of law and the doctrine of proportionality, it is essential to determine whether the proportionality could have a harmony with the values of rule of law in five steps. First, it is necessary to enquire whether the rule of law principle has a constitutional position. Next, it must be determined whether the rule of law as a principle of the constitution includes a feature of Human Rights. Third, we must ascertain whether the rule of law, as a principle of the constitution, is based upon an equilibrium amid constitutional rights and their limitations. Fourth, it must be determined that such a balance is conducted through the use of limitation clauses (statutes or the common law). Fifth, it is essential to establish an opinion on whether limitation clauses, which advance the standard of the rule of law, are based on proportionality.

Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part One

Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants unto the South African Revenue Service (SARS) officials access to taxpayers’ private and confidential information through, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article argues that the TAA is a “law of general application”, as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that – in terms of the threshold stage of analysis prescribed by this provision – the exercise of the powers conferred by secs. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. Part Two of this article (to be published in JJS 2021(2)) hypothesises that, although the search and seizure powers in secs. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought – in terms of the second stage of enquiry that is triggered by the findings in Part One – nevertheless to pass muster under sec. 36(1) of the Constitution. This is because of the justifiability of the limitation imposed on the right to privacy by these provisions.

The right to privacy under the Constitution of Kenya and the criminalisation of consensual sex between same-sex adults

SUMMARY This article argues that the provisions of the Kenyan Penal Code (sections 162 and 165) criminalising consensual sex between partners of the same sex limit the right to privacy enshrined in article 31 of the Constitution of Kenya of 2010. This limitation is not justifiable according to the Bill of Rights limitation clause in article 24 of the Constitution. Article 45(2) of the Constitution, which provides for a right to 'marry a person of the opposite sex', also does not justify this limitation. Embracing the idea of an open and democratic society, the Constitution precludes the state from imposing upon the individual moral choices, provided that those choices do not harm others. Therefore, the decision whether or not consensual sex is moral must be left to the individual concerned. By refusing to declare sections 162 and 165 unconstitutional in 2019, the High Court of Kenya misinterpreted the Constitution and consequently failed in its mandate to uphold the right to privacy of homosexual persons in Kenya. Key words: right to privacy; Constitution of Kenya; rights of LGBT+ persons; open and democratic society; criminalisation of same-sex relationships; right to marry

The dimensional elements of the right to freedom of religion or belief in the South African Constitution – an evaluation in light of relevant core international human rights instruments

Current interpretations of the right to freedom of religion or belief (FoRB) in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) make important distinctions between two dimensions of the right – a forum externum and a forum internum.1 This distinction is important since, according to current interpretations, the forum externum can be limited, whereas the forum internum is absolute. In South African human rights law, the protection of the right to freedom of religion or belief is scattered across various sections of the Bill of Rights and as a result, can be limited by the general limitation clause in sec. 36. Contrary to the mentioned international human rights documents, South African law does not consider any fundamental right (or parts thereof) to have an absolute character and aims to strike a balance on the limitation of conflicting rights (with the aim of reconciling them to each other). This distinction is amplified by the judicial interpretation of religious freedom rights and their individual, collective, public, and private manifestations. Consequently, this distinct approach to the codification and limitation of the right to religious freedom raises several important questions in comparison to the current dominant approach taken in the mentioned international human rights documents (where the two dimensions are currently being distinguished, resulting in the mentioned consequences regarding limitation). Most significantly, to what extent does South African law acknowledge the two the limitation of the two dimensions of religious freedom? dimensions of the right? What is the difference in effect of the general limitation clause on the limitation of the two dimensions of religous freedom?