During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.
{"title":"The Escalation of Corporate Corruption During the Covid-19 Pandemic: Is the Anti-Corruption Framework of the Companies Act 71 Of 2008 Adequate?","authors":"Rehana Cassim","doi":"10.47348/slr/2022/i3a1","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a1","url":null,"abstract":"During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133224288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.
{"title":"Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)","authors":"A. Mkhonza","doi":"10.47348/slr/2022/i2a9","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a9","url":null,"abstract":"There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123912128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the responsiveness of the African human rights system to sexual and gender-based violence (“SGBV”) from a collaborative framework combining both legal and computational methodologies. This alternative lens is proposed to address the need for urgent attention to the increasing SGBV and other human rights violations of persons based on their real or perceived sexual orientation, gender identity and expressions, and/ or sex characteristics (“SOGIESC”), as current research has not yet fully understood the reasons for the enduring gap between the norms and their implementation. Primarily, the focus of this research provides an intersection of the (un)responsiveness of the African human rights system to SGBV and the (in)adequacy of state responses to SGBV, including laws and practices that exacerbate SGBV, with a focus on the Southern African Development Community (“SADC”). The Universal Periodic Review (“UPR”), under the auspices of the United Nations Human Rights Council, was used to determine to what extent African states recognise and articulate positions on SGBV – results of which were used to assess further support through human rights mechanisms under the African human rights system. This article considers the international human rights record of African states on the issues of SGBV SOGIESC-based discrimination and violence. Through a systematic evaluation of the UPR record, the work presented here provides a framework for developing recommendations and/or observations for an integrated approach to advancing SOGIESC rights under the African human rights system. An artefact of the work is the development of a preliminary computational software program that was demonstrated to have captured trends in the aforementioned information with increased efficiency, potentially lowering costs and increasing accessibility.
{"title":"Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states","authors":"SC Vollmer, DT Vollmer","doi":"10.47348/slr/2022/i1a1","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a1","url":null,"abstract":"This article examines the responsiveness of the African human rights system to sexual and gender-based violence (“SGBV”) from a collaborative framework combining both legal and computational methodologies. This alternative lens is proposed to address the need for urgent attention to the increasing SGBV and other human rights violations of persons based on their real or perceived sexual orientation, gender identity and expressions, and/ or sex characteristics (“SOGIESC”), as current research has not yet fully understood the reasons for the enduring gap between the norms and their implementation. Primarily, the focus of this research provides an intersection of the (un)responsiveness of the African human rights system to SGBV and the (in)adequacy of state responses to SGBV, including laws and practices that exacerbate SGBV, with a focus on the Southern African Development Community (“SADC”). The Universal Periodic Review (“UPR”), under the auspices of the United Nations Human Rights Council, was used to determine to what extent African states recognise and articulate positions on SGBV – results of which were used to assess further support through human rights mechanisms under the African human rights system. This article considers the international human rights record of African states on the issues of SGBV SOGIESC-based discrimination and violence. Through a systematic evaluation of the UPR record, the work presented here provides a framework for developing recommendations and/or observations for an integrated approach to advancing SOGIESC rights under the African human rights system. An artefact of the work is the development of a preliminary computational software program that was demonstrated to have captured trends in the aforementioned information with increased efficiency, potentially lowering costs and increasing accessibility.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124156891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to a basic education. However, the exact meaning of a “basic education” as protected in this section has been rather uncertain as it is not defined in the Constitution or any legislative document. In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), the Constitutional Court accepted that basic education includes, at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution which does not offer secondary or tertiary education, provides those attending the institution with a basic education. Several policy documents refer to basic education as the General Education and Training phase of schooling, which consists of schooling from grades 1 to 9. Given the uncertainty surrounding the exact ambit of a basic education, both in case law and legislation, the Constitutional Court in Moko v Acting Principal of Malusi Secondary School 2021 3 SA 323 (CC) had to answer the question “where does basic education end and further education begin?” The court’s decision provides clarity on the meaning of a basic education as protected in section 29(1)(a). This decision is to be welcomed given the importance of the right as a direct and unqualified right, and for its transformative potential. However, there is now a misalignment between the understanding of a basic education protected in section 29(1)(a) and several policy documents issued by the Department of Basic Education. This misalignment may lead to further confusion regarding the meaning of the right to a basic education and potentially negatively impact the realisation or fulfilment of the right. This note will consider the court’s decision, particularly in relation to its finding to the question posed above.
1996年《南非共和国宪法》第29(1)(a)条规定人人享有接受基础教育的权利。然而，本节所保护的“基础教育”的确切含义相当不确定，因为《宪法》或任何立法文件都没有对其下定义。在Juma Musjid小学管理机构诉2011年8 BCLR 761 (CC)案中，宪法法院承认基础教育至少包括一年级至九年级的学校教育。在AB诉Pridwin Preparatory School 2020 5 SA 327 (CC)一案中，Nicholls JA认为，不提供中等或高等教育的教育机构为就读该机构的学生提供基础教育。一些政策文件将基础教育称为学校教育的通识教育和培训阶段，包括从一年级到九年级的学校教育。鉴于基础教育的确切范围在判例法和立法方面都存在不确定性，宪法法院在Moko诉Malusi Secondary School代理校长2021年3 SA 323 (CC)一案中必须回答“基础教育在哪里结束，继续教育在哪里开始?”法院的裁决明确了第29(1)(a)条所保护的基础教育的含义。鉴于这项权利作为一项直接和无条件的权利的重要性及其变革潜力，这项决定将受到欢迎。然而，现在对第29(1)(a)条所保护的基础教育的理解与基础教育部发布的几份政策文件之间存在不一致。这种错位可能导致对基础教育权含义的进一步混淆，并可能对该权利的实现或实现产生负面影响。本说明将审议法院的裁决，特别是与法院对上述问题的裁决有关的裁决。
{"title":"Providing Greater Clarity on the Meaning of Basic Education [Discussion of Moko V Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]","authors":"G. Adams, BV Slade","doi":"10.47348/slr/2022/i3a12","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a12","url":null,"abstract":"Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to a basic education. However, the exact meaning of a “basic education” as protected in this section has been rather uncertain as it is not defined in the Constitution or any legislative document. In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), the Constitutional Court accepted that basic education includes, at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution which does not offer secondary or tertiary education, provides those attending the institution with a basic education. Several policy documents refer to basic education as the General Education and Training phase of schooling, which consists of schooling from grades 1 to 9. Given the uncertainty surrounding the exact ambit of a basic education, both in case law and legislation, the Constitutional Court in Moko v Acting Principal of Malusi Secondary School 2021 3 SA 323 (CC) had to answer the question “where does basic education end and further education begin?” The court’s decision provides clarity on the meaning of a basic education as protected in section 29(1)(a). This decision is to be welcomed given the importance of the right as a direct and unqualified right, and for its transformative potential. However, there is now a misalignment between the understanding of a basic education protected in section 29(1)(a) and several policy documents issued by the Department of Basic Education. This misalignment may lead to further confusion regarding the meaning of the right to a basic education and potentially negatively impact the realisation or fulfilment of the right. This note will consider the court’s decision, particularly in relation to its finding to the question posed above.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114241452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.
{"title":"Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia","authors":"Tina Kotzé","doi":"10.47348/slr/2021/i2a1","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a1","url":null,"abstract":"There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128072451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the importance of the provisions of the Niamey Guidelines to Combat Sexual Violence and its Consequences in addressing sexual violence, including sexual harassment in Africa. Using Nigeria as a case study, the article examines the provisions of international and regional human rights instruments in addressing sexual harassment. It discusses the Guidelines’ approach to addressing sexual violence, including sexual harassment. The article highlights some of the salient provisions of the Niamey Guidelines on sexual violence, which include the obligation of states to prevent sexual violence, protecting and supporting victims of sexual violence, investigating and prosecuting sexual violence, ensuring reparation to implementing international and regional norms on sexual violence at the national level. The analysis of the Niamey Guidelines vis-à-vis legislation to address sexual harassment in Nigeria is grounded in asking the woman question. This refers to how laws, policies and judicial decisions take account of the lived experiences of women. Thereafter, the article discusses some of the gaps in the approach by the Nigerian government to address sexual harassment and offers recommendations for the way forward.
{"title":"The Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria","authors":"E. Durojaye, T. Lawal","doi":"10.47348/slr/2022/i1a4","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a4","url":null,"abstract":"This article examines the importance of the provisions of the Niamey Guidelines to Combat Sexual Violence and its Consequences in addressing sexual violence, including sexual harassment in Africa. Using Nigeria as a case study, the article examines the provisions of international and regional human rights instruments in addressing sexual harassment. It discusses the Guidelines’ approach to addressing sexual violence, including sexual harassment. The article highlights some of the salient provisions of the Niamey Guidelines on sexual violence, which include the obligation of states to prevent sexual violence, protecting and supporting victims of sexual violence, investigating and prosecuting sexual violence, ensuring reparation to implementing international and regional norms on sexual violence at the national level. The analysis of the Niamey Guidelines vis-à-vis legislation to address sexual harassment in Nigeria is grounded in asking the woman question. This refers to how laws, policies and judicial decisions take account of the lived experiences of women. Thereafter, the article discusses some of the gaps in the approach by the Nigerian government to address sexual harassment and offers recommendations for the way forward.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124660255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.
{"title":"Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud - alternative suggestions","authors":"M. du Plessis","doi":"10.47348/slr/2022/i2a4","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a4","url":null,"abstract":"In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"17 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132603583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.
{"title":"A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child","authors":"B. Clark","doi":"10.47348/slr/2021/i2a3","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a3","url":null,"abstract":"The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121850714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.
{"title":"Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials","authors":"A. O. Jegede, Myrone Stoffels","doi":"10.47348/slr/2022/i2a7","DOIUrl":"https://doi.org/10.47348/slr/2022/i2a7","url":null,"abstract":"The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123440652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.
{"title":"The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality","authors":"C. Visser","doi":"10.47348/slr/2021/i2a5","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a5","url":null,"abstract":"This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciary’s recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128325417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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