South African Law Research Articles

Water-Energy-Food Communities in South Africa: Exploring Multi-Actor Governance Instruments Contributing to Social Justice

Abstract South Africa faces significant challenges concerning the scarcity and unequal distribution of water, energy and food resources. The Constitution of the Republic of South Africa, 1996 underscores the importance of social justice and mandates collaboration among all levels of government and state entities. To effectively address the interconnected nature of these resources, a collaborative governance approach is necessary. This article introduces the concept of ‘Water-Energy-Food (wef) communities’, a concept not currently recognised in South African law, drawing inspiration from the European Union’s Renewable Energy Directive (res-Directive) of 2018 and the Electricity Market Directive (E-Directive) of 2019 that introduced the concept of ‘energy communities’. wef communities, operating at the local level, could integrate improved governance and decision-making in the water, energy, and food sectors, thereby advancing social justice in local communities. The article compares existing multi-actor governance instruments in South African law and uses the EU law as learning points for the establishment of wef communities as opposed to energy communities that focus on one determinant only. Although the current South African multi-actor governance instruments do not explicitly address an integrated wef governance approach, they may serve as a basis for proposing framework rules to establish wef communities, highlighting their potential to achieve social justice goals in relation to their access to water, energy and food. The article proposes rules for the potential establishment of wef communities, taking learning points from the EU directives as well as existing South African instruments.

To Bequeath or not to Bequeath? A South African Law Analysis of the "Problematic Areas" Found in the Islamic Law of Intestate Succession

The fairness of the Islamic Law of compulsory succession remains a heavily contested issue all over the world. Frequently debated topics, referred to in this article as the "problematic areas", include the 2:1 division of inheritance in favour of the male, the disqualification of a child born out of wedlock and the exclusion of an adopted child from the Islamic intestate inheritance equation. This equation is found in the primary texts of the religion of Islam i.e., the Holy Qur'ān and Prophetic teachings. These texts contain a formula dictating how the assets in a deceased person's estate should devolve, with individual freedom of testation limited to only a third of the net estate. The position followed in South African law is vastly different to the aforementioned. This article focusses on these so-called problematic areas found in the Islamic law of intestate succession. Part One of this article demonstrates these differences through the use of a hypothetical scenario involving person X. This hypothetical scenario includes an investigation of all three "problematic areas" mentioned. The article further progresses to uncover the rationale for each of these principles. The concluding section of this article provides recommendations on the lawful remedies available to Muslim testators wanting to create a more equitable distribution.

Balancing customary practices with constitutional principles: The best interest of the child in south African law

Balancing customary practices with constitutional principles: The best interest of the child in south African law

No Time for Justice? Obstetric Violence, Damages Claims and Prescription Periods in South African Law

Obstetric violence is currently not acknowledged as a form of gender-based violence in South African law. In this article I deal with the various issues associated with this failure to correctly categorise obstetric violence. One of the issues relates to access to legal recourse for survivors through delictual claims (torts). Delictual claims are wrongful acts or limitations of rights that can lead to legal liability in the form of monetary compensation. The current framing of obstetric violence as medical malpractice limits women's time to launch a case to only three years after the violation. To show how this issue of prescription (a legal principle where an outstanding debt can be extinguished after a prescribed time period) plays out, I focus on the 2020 report by the South African Commission for Gender Equality (CGE) on the forced or coerced sterilisation of women living with HIV at state healthcare facilities. I also examine the current case of the Centre for Applied Legal Studies (CALS), a university-based human rights law clinic, which represents over 40 women who have experienced different forms of obstetric violence at state-run facilities. In both of these examples, I explain how justice through legal recourse is denied to these victims or survivors through the mischaracterisation of obstetric violence as medical malpractice in current South African law. To show that the three-year ‘limit’ or prescription period to institute a legal claim is unjustifiable, I explore three reasons why women may not choose to or be able to proceed with a legal claim within that time period. The first of these relates to the ‘personal’ barrier women face around acknowledging they have experienced obstetric violence and bringing a claim against the state. The second, the ‘political’ barrier, includes the general and prevalent systemic gender discrimination experienced by women in South Africa and the specific barriers women face around access to dignified treatment in the country's public healthcare system. Finally, an ‘economic’ barrier is the general inaccessibility of legal representation for economically disadvantaged people in the country. Proceeding from the above, I then argue that by acknowledging obstetric violence as a form of gender-based violence and aligning it with legislation around prescription periods for other forms of gender-based violence (such as sexual offences), the burdens related to access to justice (at least in delict) can be lightened for survivors.

The Rise of Kidnappings in South Africa: Challenges for Law Enforcement

This paper examines the rise of kidnapping in South Africa. It aims to reflect on the challenges law enforcement faces in addressing what has quickly become a considerable societal problem. This paper employed secondary data as a data collection technique using narrative literature review. The rational choice theory was employed as a theoretical lens. Findings revealed that kidnapping in South Africa is driven by several issues, such as poverty, inequality, unemployment and the growth and consolidation of crime syndicates making millions in ransom fees. While South African law enforcement agencies claim to be making inroads in addressing kidnapping cases, they face considerable challenges, such as public mistrust, lack of support and the underreporting of kidnapping cases, making it hard to address the problem. South Africa is under pressure to ensure that legislation effectively addresses this issue. It is therefore recommended that the country establish and capacitate specialized kidnapping units that will work closely with community police forums, the community, and other relevant stakeholders to ensure seamless coordination in responding to the rise of kidnapping. Moreover, eradicating corruption within the police force will be an effective measure to help address the problem.

A critical analysis of Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119

South African law under the Labour Relations Act 66 of 1995 (LRA), as amended, confers on the Labour Court the power to adjudicate on issues relating to strikes and to grant an interdict and/or order the payment of just and equitable compensation for any loss attributable to the strike or lockout. At least 48 hours before the strike, workers or their trade unions must give written notice of their intention to strike to the employer, the applicable negotiating council, and the Commission for Conciliation, Mediation, and Arbitration. If a strike follows the law, workers who take part in it are shielded from being fired for no other reason than that they are striking. Employees on strike and their trade unions are shielded from lawsuits for any losses or harm sustained while on the protected strike. During an unprotected strike, workers lose the legal protections afforded by labour laws, leaving them open to legal action and possible termination. In the case under review - Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119 - the trade union, from whom the employer sought compensation for damages caused during a protected strike, objected to the Labour Court's jurisdiction as derived from the LRA. This article provides a critical review of the Labour Court's jurisdiction, particularly in the light of section 68 of the LRA, to order compensation. The analysis revisits previous judgments to test the correctness of the judgment given in the Massmart case.

DOES SECTION 9(2) OF THE DIVORCE ACT 70 OF 1979 PROVIDE ADEQUATE PROTECTION FOR AN ILL SPOUSE?

In simple terms, section 9 of the Divorce Act (70 of 1979) provides for forfeiture of patrimonial benefits (forfeiture) in divorce proceedings if the ground for the divorce is the irretrievable breakdown of a marriage. It was important for the legislature to specify that forfeiture may only be made where the ground for a divorce is the irretrievable breakdown of the marriage (s 3(a) read with s 4(1)), because the latter is not the only ground for a divorce in South African law. A marriage may also be dissolved by a decree of divorce on the grounds of mental illness or continuous unconsciousness (s 3(b) read with s 5). Section 9(2) further clarifies the legal position by providing that forfeiture may not be ordered against the defendant where the grounds for a divorce are mental illness or continuous unconsciousness. Obviously, the purpose behind section 9(2) is to provide protection for the mentally ill or unconscious spouse in divorce proceedings. However, the protection provided is lacking in two respects. First, as is shown below, mental illness and continuous unconsciousness, as grounds for a divorce, do not cover all defendants who suffer from mental illness or continuous unconsciousness. Defendants who are mentally ill or unconscious, but fall outside the ambit of section 5, are not protected by section 9(2). Consequently, a forfeiture order becomes possible against them. Secondly, as is shown below through case law, it appears possible to prosecute a divorce against a mentally ill or a continually unconscious spouse under section 4(1) – that is, on the basis of an irretrievable breakdown of the marriage. In this case, a forfeiture is possible and the protection in section 9(2) is circumvented.In light of the above, the adequacy of the protection in section 9(2) is questioned. This note discusses the adequacy of the protection in section 9(2). It also seeks to recommend ways in which the defect in this provision may be remedied. The grounds for a divorce in South Africa are discussed and mental illness and continuous unconsciousness are contextualised within the broader divorce jurisprudence. Thereafter follows a more focused discussion on mental illness and continuous unconsciousness as grounds for a divorce, as provided for in section 5. These discussions also reflect on the arguments by other academics, including arguments that section 5 should be expunged from the Divorce Act. Forfeiture is discussed briefly. In conclusion, the question whether section 9(2) provides adequate protection is considered together with the author’s recommendations.

JUDICIAL CASE FLOW MANAGEMENT “CHECKPOINT”: HOW FAR HAVE WE GONE?

This article examines the introduction of judicial case flow management into South African law from a historical perspective, its initial failures, resistance and fundamental principles. It sets out the judicial attempts to regulate the management of litigious matters through the Uniform Rules of Court, particularly rule 37A, and the impact of the introduction of the era of norms and standards on case flow management. Through revelations in practice of the positive progress achieved in judicial case flow management, the central argument is that a more inquisitorial role in the case flow management system is key to ensuring access to justice.

Constitutional Damages in South Africa: A Transformative Approach

Abstract This article explores when constitutional damages can and should be awarded in South African law. The history of the divergence between common-law damages and constitutional damages (and the uncertainty that might arise about which type of damages a victim of an injury ought to pursue) is explored. Thereafter, a critical and constructive interpretation of the case law on constitutional damages is provided, which sets the scene for a precedent-inspired three-step approach to constitutional damages adjudication. This approach is then defended as a transformative constitutional one which squares easily against the notion of constitutional adjudicative subsidiarity.

The Doctrine of Substantive Legitimate Expectation: A Missing Piece of the Puzzle in Modern South African Administrative Law

The Doctrine of Substantive Legitimate Expectation: A Missing Piece of the Puzzle in Modern South African Administrative Law

The best interests of the child and the right of interested third parties to parental responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)

The South African post-constitutional era gave rise to the reframing of what was previously referred to as parental authority to parental responsibilities and rights. Throughout these developments, the best interests of the child remained a constant consideration, resulting in a move away from a parent-centred approach to a child-centred approach. In line with this child-centred approach, modern South African law recognises that children have the right to family or parental care. Recognition is also given to the subsequent fundamental principle that parents and the family perform a central role in a child's care and protection. However, analogous to global trends South African family structures have transformed and are no longer typically nuclear, but are characterised by a diversity of parental, family and community-based forms of caregiving. Children accordingly find themselves being cared for by persons who are not their biological parents. In this regard the position of the "interested third party" or so-called "co-holder of parental responsibilities and rights" is gaining increasing relevance. Although the role of interested third parties is recognised in domestic law, in the Children's Act, some uncertainty about the right of these parties to obtain parental responsibilities and rights over a child prevails. One such aspect is the right of a former life-partner to obtain parental responsibilities and rights over a non-biological child upon the dissolution of a life-partner relationship. A recent High Court case, RC v SC 2022 4 SA 308 (GJ) and its appeal namely, RC v HSC 2023 4 SA 231 (GJ) to a full bench of the High Court provides valuable insight into this regard and specifically on the approach taken by the courts about an application for parental rights and responsibilities to a non-biological child by an interested third party in terms of the Children's Act.

Unmasking deception: deepfake regulation in the context of South African law, could a rethinking of performers’ protection rights be the answer?

Abstract The limitless capabilities of the Internet allow for the widespread sharing of media and information. Technological progress has empowered tech enthusiasts to develop software that can interchange faces, superimposing the likenesses of any individual onto others in videos. These advanced technologies now leverage Artificial Intelligence (AI) to produce videos and photos so realistic they’re often indistinguishable from authentic footage. The term ‘deepfakes’ has emerged as a key descriptor for these creations. While there are harmless applications of this technology, it has also been exploited for creating deepfake pornography. Such illicit use often involves the unauthorized use of personal images from social media to create pornographic content without the subject’s consent, profoundly impacting victims’ lives. Most of the research on non-consensual dissemination of explicit content has been focussed on the distribution or on the criminal blackmailing of individuals with existing, unfabricated content. This article aims to address the gap in research on nonconsensual deepfake pornography and existing image-based offences from a South African law perspective. It analyses the existing legal frameworks and whether they can provide adequate recourse to victims of non-consensual explicit deepfakes. This article asserts that the current legal framework falls short of the threat of the use of deepfakes in nonconsensual sharing of intimate images or videos. Amid the discussion, this article recommends a principled strategy for a well-rounded regulatory reaction to deepfakes, which are described as artificial performances generated through AI technologies. This strategy is applied practically by suggesting the utilization of South Africa’s performers’ rights legislation and policies as an appropriate mechanism for deepfake regulation.

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

DECOLONISING LABOUR LAWS AND REPOSSESSING SUBALTERN EPISTEMOLOGIES: A REVIEW OF SOUTH AFRICAN AND NAMIBIAN MINEWORKERS’ FIGHT FOR LABOUR RIGHTS

In the historical and current transformation discourses in South Africa and Namibia, the concept of decolonisation is no longer a mere abstract concept. Decolonisation is now a fundamental policy and regulatory imperative that is heavily centred on, among other things, the land question and debates around the historical as well as present-day use of indigenous cheap and unskilled labour in underpaid sectors of industry –particularly the mining sector. During the colonial era, as the mining industries in South Africa and Namibia expanded, a substantial number of migrant labourers and local workers entered the mines. To safeguard these mineworkers’ legal rights, labour laws were passed. Despite the implementation of such labour laws, regular strikes were a feature of the mining industries in South Africa and Namibia at the time. In the post-colonial dispensation, the South African mining industry has been characterised by numerous strike actions, while in Namibia, widespread dissatisfaction with working conditions has been noted. This raises the question of whether or not South Africa and Namibia have made progress in defending mineworkers’ labour rights. This question is critical when viewed through the lens of a post-colonial society governed by a constitutionalised labour law framework. While there has arguably been a noticeable improvement in mineworkers’ employment conditions, labour-related inequities continue to characterise the mining industries in South Africa and Namibia in the post-colonial era. Profiteering, capitalism, safeguarding the security of tenure of foreign mining corporations, and the persistent need to ensure the ease of doing business in the mining sector appear to take precedence over defending mineworkers’ rights. Thus, this article explores the labour rights discourse developed by South African and Namibian mineworkers, as well as the applicable labour legislation. A strong case is made for reconsidering the extent to which South African and Namibian labour laws have been decolonised. This is done in a manner that is attentive to investment security and sustainable growth of the mining sector in the two countries as well as the realisation of African mineworkers’ fundamental labour rights.

The Failure of the South African Family Law System in Custody Battles: A Father's Perspective

ABSTRACT This article examines the experiences of four non-resident fathers in child custody battles in South Africa. These fathers have been in constant legal battles and have concluded that the South African family law system has failed them. The system, according to these fathers, refers to the various laws related to the maintenance court system and the children’s court, as well as the people who implement them, including social workers from the Department of Social Development, court-appointed psychologists, and family lawyers, and all the other organisations tasked with ensuring that the best interests of a child in custody cases are upheld. The interviewed participants maintained this view based on what they perceived as the barriers that the system places before fathers. Participants in this study also believed that in child custody cases, the courts tend to be biased against men, and they lament the slow manner in which the children’s court handles and resolves child custody cases. The narratives of the four participants presented in this article shed light on an important aspect of parental relations in South Africa. The study recommends a coordinated effort by the government, the South African court system and organisations advocating for fathers’ rights to encourage the involvement of non-resident fathers, and commends the recent court judgements in favour of fathers in parental alienation cases. The article emphasises that the systems should promote positive and active father involvement with their children with the same vehemence as financial provision by fathers for mothers and their children.

Influence of the Cultural Defence on Conduct and Culpability in South African Criminal Law

South African criminal law has no separate, distinct, or novel cultural defence. Such a defence could negate or mitigate an accused’s criminal liability for a culturally motivated crime. Whether South Africa’s criminal law could adopt such a defence requires understanding its influence on the requirements for criminal liability. This article evaluates the influence of the cultural defence on the elements of conduct and culpability. The first part deals with the cultural defence and voluntary conduct. The discussion then turns to culpability, which consists of criminal capacity and fault (mens rea). The third part considers the cultural defence’s influence on criminal capacity, while the fourth considers its influence on fault. More specifically, the article evaluates how the existing types of defence that can negate conduct and culpability in South Africa’s criminal law can accommodate arguments of an accused’s cultural background, values, and beliefs to determine whether there is a gap that only a separate, distinct, or novel cultural defence can fill. The article concludes that South Africa’s principles of conduct and culpability are already flexible enough to accommodate such arguments, obviating the need for introducing a separate, distinct, or novel cultural defence.

The Remaking of South African Administrative Law

AbstractThis article explores the remaking of administrative law review in South Africa since the introduction of constitutional democracy in 1994. It characterizes the construction of the constitutional and legislative framework, as well as the courts’ interpretation of that framework, as the first phase of the remaking. The second phase encompasses the courts’ recognition of a constitutional principle of legality based on the rule of law, and their swift development of the content of this principle. This judicial creativity has resulted in an elaborate avenue to review, parallel to the Promotion of Administrative Justice Act 3 of 2000, and has caused problems of rivalry and avoidance. The article identifies and discusses some of the more significant implications of each of these phases of reconstruction. It also proposes corrective measures likely to advance the coherence and effectiveness of judicial review and discourage the adoption of a doctrine of non-justiciability.

The price women attorneys pay for being mothers in South African law firms

AbstractThis paper presents the findings of a study undertaken amongst women attorneys in South Africa, to determine the impact motherhood has on their legal career. The argument is that motherhood is incompatible with the hyper‐competitive male dominant professional culture of the legal profession. The paper employs Edgar Schein's concept of organisational culture and Pierre Bourdieu's concepts of field, habitus and culture to understand how women continue to experience unequal outcome in their careers, despite the removal of formal barriers and the enactment of laws and policies. The concepts further illuminate how and why the male dominant culture of the profession embeds itself and remains one of the hardest elements to change. The study was furthermore underpinned by a feminist standpoint epistemology, interviewing 27 attorneys across three corporate law firms in South Africa. The key findings show that when becoming a mother, many women attorneys experience a disjuncture between their mothering and professional role, which is attributed to the hyper‐competitive culture of the profession. This leads to many women having less successful legal careers which is manifested in different ways. These findings demonstrate how women are perpetually marginalized in the profession and why we continue to see the lack of women in the senior ranks of the profession despite a robust legal and policy framework promoting equality.

Bridging the Divide between Rights In Personam and Rights In Rem in Land Transactions: A Comparative Perspective of Australian and South African Law

In transactions relating to land a distinction is made between the creation of personal or contractual rights (rights in personam) by contract, and real rights (rights in rem) via the registration process. Historically, additional, or special rights or interests have been conferred upon the vendor and purchaser to provide protection for the time period between the creation of rights in personam and the creation of rights in rem. The focus of this article is to identify and examine the nature and operation of these protective rights and compare their application in Australia and South Africa. These protective rights are recognised in different ways in both Australia and South Africa via common law, equity and legislation. It is concluded that interim protective equitable rights in Australia and a special category of personal rights under South African law provide a bridge to the creation of full in rem rights.

The wisdom of claiming ownership of human genomic data: A cautionary tale for research institutions.

This article considers the practical question of how research institutions should best structure their legal relationship with the human genomic data that they generate. The analysis, based on South African law, is framed by the legal position that although a research institution that generates human genomic data is not automatically the owner thereof, it is well positioned to claim ownership of newly generated data instances. Given that the research institution exerts effort to generate the data, it can be argued that it has a moral right to claim ownership of such data. Combined with the fact that it has an interest in having comprehensive rights in such data, it appears that the prudent policy for research institutions is to claim ownership of the human genomic data instances that they generate. This policy is tested against two opposing policy positions. The first opposing policy position is that research participants should own the data that relate to them. However, in light of data protection legislation that already provides extensive protections to research participants, bestowing data ownership on research participants would offer little benefit to such individuals, while leading to significant practical problems for research institutions. The second opposing policy position is that the concept of ownership should be abandoned in favour of data custodianship. This opposing position is problematic, as avoiding reference to ownership is a denial of legal reality and hence not a useful policy. Also, avoiding reference to ownership will leave research institutions with limited legal remedies in the event of appropriation of data by third parties. Accordingly, it is concluded that the wisest policy for research institutions is indeed to explicitly claim ownership of the human genomic data instances that they generate.