Pub Date : 2024-07-12DOI: 10.17159/1727-3781/2024/v27i0a14648
Mnotho Ngcobo
With the growth of e-commerce transactions and people living their lives online, it is important for consumer disputes to be tailored in a manner that is suitable for consumers and their types of disputes. Currently South Africa is facing major delays in resolving consumer disputes, and consumers end up not pursuing their low-value claims as the current processes take a long time. Further, consumers do not have the funds to pay attorneys. The Consumer Protection Act encourages the use of alternative dispute resolution (ADR) before a consumer dispute can be referred to a court of law. However, such ADR processes are lengthy and do not provide consumers with affordable and efficient relief. The current ADR processes do not meet the expectations of the consumers; thus, this paper proposes an integration of artificial intelligence (AI) and Blockchain Technologies in resolving consumer disputes via online dispute resolution (ODR). Various forms of AI and blockchain technologies are explored. The concept of online dispute resolution is introduced and current examples of online dispute resolution systems like eBay, and countries that have already moved to online dispute resolution with the integration of AI, are used as exemplary models for a South African online dispute resolution powered by AI and blockchain technologies.
{"title":"Artificial Intelligence and Blockchain Technologies in Online Dispute Resolution: A Solution to Consumer Disputes in South Africa?","authors":"Mnotho Ngcobo","doi":"10.17159/1727-3781/2024/v27i0a14648","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14648","url":null,"abstract":"With the growth of e-commerce transactions and people living their lives online, it is important for consumer disputes to be tailored in a manner that is suitable for consumers and their types of disputes. Currently South Africa is facing major delays in resolving consumer disputes, and consumers end up not pursuing their low-value claims as the current processes take a long time. Further, consumers do not have the funds to pay attorneys. The Consumer Protection Act encourages the use of alternative dispute resolution (ADR) before a consumer dispute can be referred to a court of law. However, such ADR processes are lengthy and do not provide consumers with affordable and efficient relief. The current ADR processes do not meet the expectations of the consumers; thus, this paper proposes an integration of artificial intelligence (AI) and Blockchain Technologies in resolving consumer disputes via online dispute resolution (ODR). Various forms of AI and blockchain technologies are explored. The concept of online dispute resolution is introduced and current examples of online dispute resolution systems like eBay, and countries that have already moved to online dispute resolution with the integration of AI, are used as exemplary models for a South African online dispute resolution powered by AI and blockchain technologies.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"45 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141654743","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}
Pub Date : 2024-07-11DOI: 10.17159/1727-3781/2024/v27i0a16680
H. Kruger
By the early 2000s the practice of using the foster care system as a measure to subsidise the income of families who cared for the children of relatives was firmly entrenched in South Africa. This caused a rapid rise in the number of children receiving the foster child grant. By 2010 more than 500 000 foster child grants (FCGs) were in payment. The foster care system could not cope with this pressure, resulting in the lapsing of more than 110 000 foster child grants between April 2009 and March 2011. The High Court intervened at the request of the Centre for Child Law in Pretoria, placing a moratorium on the lapsing of foster care orders and giving the Department of Social Development (DSD) until December 2014 to come up with a "comprehensive legal solution" to solve the foster care crisis. The December 2014 deadline was extended four times, eventually until December 2022. The "comprehensive legal solution" that the North Gauteng High Court tasked the minister with in 2011 required amendments to both the Social Assistance Act 13 of 2004 and the Children's Act 38 of 2005. The first of these amendments, the Social Assistance Amendment Act 16 of 2020, came into effect on 30 May 2022 and the second, the Children's Amendment Act 17 of 2022, on 8 November 2023. This article considers the question whether the department's response to the so-called "foster care crisis" as contained in these Amendment Acts and their regulations complies with South Africa's obligations in terms of international law and the Constitution of the Republic of South Africa, 1996.
{"title":"Safeguarding the Rights of Children Living in Kinship Care in South Africa","authors":"H. Kruger","doi":"10.17159/1727-3781/2024/v27i0a16680","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16680","url":null,"abstract":"By the early 2000s the practice of using the foster care system as a measure to subsidise the income of families who cared for the children of relatives was firmly entrenched in South Africa. This caused a rapid rise in the number of children receiving the foster child grant. By 2010 more than 500 000 foster child grants (FCGs) were in payment. The foster care system could not cope with this pressure, resulting in the lapsing of more than 110 000 foster child grants between April 2009 and March 2011. The High Court intervened at the request of the Centre for Child Law in Pretoria, placing a moratorium on the lapsing of foster care orders and giving the Department of Social Development (DSD) until December 2014 to come up with a \"comprehensive legal solution\" to solve the foster care crisis. The December 2014 deadline was extended four times, eventually until December 2022. The \"comprehensive legal solution\" that the North Gauteng High Court tasked the minister with in 2011 required amendments to both the Social Assistance Act 13 of 2004 and the Children's Act 38 of 2005. The first of these amendments, the Social Assistance Amendment Act 16 of 2020, came into effect on 30 May 2022 and the second, the Children's Amendment Act 17 of 2022, on 8 November 2023. This article considers the question whether the department's response to the so-called \"foster care crisis\" as contained in these Amendment Acts and their regulations complies with South Africa's obligations in terms of international law and the Constitution of the Republic of South Africa, 1996.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"52 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141655707","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}
Pub Date : 2024-07-10DOI: 10.17159/1727-3781/2024/v27i0a16012
Lisbeth Letsoalo
Bredenkamp v Standard Bank of South Africa Ltd (SCA) and subsequent cases that followed this precedent exhibit that banks have the right to terminate the bank-customer relationship unilaterally. This right is usually entrenched in the contract between the bank and its customer and may also have its origin in an implied term of the contract. Some major banks in the Republic of South Africa have recently been under the spotlight for unilaterally terminating the bank-customer relationship with their customers (the Sekunjalo Group) based on reputational risks. It is alleged that in terminating the relationship, these banks unfairly discriminated against Sekunjalo Group, therefore asserting that the principle of reputational risk is not attributed similarly across customers of different racial groups. Whereas the paper does not intend to decide on such allegations of racial discrimination, the paper asserts that the unilateral termination of a bank-customer relationship is both a right and an obligation. The paper adopts a qualitative research approach in analysing the contractual nature of a bank-customer relationship, the common-law principles regarding the termination of the bank-customer relationship, and the developments in the application of the principle of reputational risk by South African banks and courts in the wake of the applications lodged by members of the Sekunjalo Group.
{"title":"Navigating Reputational Risks: Cautionary Considerations for South African Banks in the Unilateral Termination of Bank-Customer Relationships","authors":"Lisbeth Letsoalo","doi":"10.17159/1727-3781/2024/v27i0a16012","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16012","url":null,"abstract":"Bredenkamp v Standard Bank of South Africa Ltd (SCA) and subsequent cases that followed this precedent exhibit that banks have the right to terminate the bank-customer relationship unilaterally. This right is usually entrenched in the contract between the bank and its customer and may also have its origin in an implied term of the contract. Some major banks in the Republic of South Africa have recently been under the spotlight for unilaterally terminating the bank-customer relationship with their customers (the Sekunjalo Group) based on reputational risks. It is alleged that in terminating the relationship, these banks unfairly discriminated against Sekunjalo Group, therefore asserting that the principle of reputational risk is not attributed similarly across customers of different racial groups. Whereas the paper does not intend to decide on such allegations of racial discrimination, the paper asserts that the unilateral termination of a bank-customer relationship is both a right and an obligation. The paper adopts a qualitative research approach in analysing the contractual nature of a bank-customer relationship, the common-law principles regarding the termination of the bank-customer relationship, and the developments in the application of the principle of reputational risk by South African banks and courts in the wake of the applications lodged by members of the Sekunjalo Group.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"28 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141660641","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}
Pub Date : 2024-07-10DOI: 10.17159/1727-3781/2024/v27i0a15055
P. R. Msaule
This contribution contends that in holding that the once-and-for-all rule was applicable in Olesitse NO v Minister of Police the SCA erred. The error was cause by the SCA mischaracterising the cause of action in this matter. It is trite that the succesful application of the once-and-for-all rule is depended on the finding by the court that the current claim is based on the same cause of action with the previous claim. It is also trite that different causes of action may emanate from the same set of fact or even from a single conduct. In Olesitse the SCA failed to appreciate this incontrovertible proposition of law. Although the SCA seems to suggest that the causes of action in this case was different from an earlier action, this submission is unmasked by the Court's conclusion that the difference between the causes of action in this case and the previous case "pales into significance having regard to the fact that the event gave to [the earlier] claim is the same." This conclusion not only misstates the law, it also ignored the significance of the difference of the constituent elements of the two causes of action (unlawful arrest and detention on the one hand and malicious prosecution on the other). To underscore the importance of this difference, it should be noted that the two causes of action do not arise at the same time, and therefore may be brought at different times. It trite also that the prescription of theses causes of action to not begin to run at the same time. How the court could have ignored these factors is incomprehensible. It is thus plain to see that the SCA came to the incorrect conclusion that the once-and-for-all rule was applicable in this case because it had the different causes of action implicated in this case. Needless to say, had the SCA carefully analysed the two causes of action it would not have came to the conclusion it did.
{"title":"\"Cause of Action\": How Could the Supreme Court of Appeal Get it so Wrong? Olesitse v Minister of Police (SCA) (Unreported) Case No: 470/2021 of 15 June 2022","authors":"P. R. Msaule","doi":"10.17159/1727-3781/2024/v27i0a15055","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15055","url":null,"abstract":"This contribution contends that in holding that the once-and-for-all rule was applicable in Olesitse NO v Minister of Police the SCA erred. The error was cause by the SCA mischaracterising the cause of action in this matter. It is trite that the succesful application of the once-and-for-all rule is depended on the finding by the court that the current claim is based on the same cause of action with the previous claim. It is also trite that different causes of action may emanate from the same set of fact or even from a single conduct. In Olesitse the SCA failed to appreciate this incontrovertible proposition of law. Although the SCA seems to suggest that the causes of action in this case was different from an earlier action, this submission is unmasked by the Court's conclusion that the difference between the causes of action in this case and the previous case \"pales into significance having regard to the fact that the event gave to [the earlier] claim is the same.\" This conclusion not only misstates the law, it also ignored the significance of the difference of the constituent elements of the two causes of action (unlawful arrest and detention on the one hand and malicious prosecution on the other). To underscore the importance of this difference, it should be noted that the two causes of action do not arise at the same time, and therefore may be brought at different times. It trite also that the prescription of theses causes of action to not begin to run at the same time. How the court could have ignored these factors is incomprehensible. It is thus plain to see that the SCA came to the incorrect conclusion that the once-and-for-all rule was applicable in this case because it had the different causes of action implicated in this case. Needless to say, had the SCA carefully analysed the two causes of action it would not have came to the conclusion it did.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"47 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141660146","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}
Pub Date : 2024-07-10DOI: 10.17159/1727-3781/2024/v27i0a17154
Phemelo Magau
The purpose of the Competition Act 89 of 1998 as amended (the Competition Act) is, among others, to promote the efficiency, adaptability and development of the economy as well as to provide consumers with competitive prices and product choices. In line with this purpose, the Competition Act provides that a dominant firm is prohibited from engaging in price discrimination if such conduct will likely substantially prevent or lessen competition, which would be to the detriment of consumers. Notably the Competition Act has established various bodies to regulate competition and act against any conduct prohibited by this Act in South Africa. These bodies include the Competition Commission, the Competition Tribunal, and the Competition Appeal Court. Notwithstanding the prohibition of price discrimination, the Competition Act does not expressly provide adequate enforcement tools for competition authorities to combat uncompetitive practices in the digital era. Moreover, the Competition Act does not expressly grant these statutory bodies clear roles and mandates on providing consumers with adequate and suitable redress when they have been victims of algorithmic price discrimination. With recent technological developments, electronic commerce (e-commerce), and digital transformation, consumers have become vulnerable to various challenges such as excessive pricing, data breaches and algorithmic pricing. The online and digital markets are characterised by complex transactions, innovative technologies and business practices which expose all consumers, including vulnerable consumers, to different risks. As such, the role of the competition authorities needs to be recalibrated to enhance consumer protection on the pricing of goods and services. To this end this paper seeks to investigate the role and ambit of the powers of these competition authorities in the regulation of price discrimination in the context of digital transformation and the digital economy. This is done to assess whether the competition authorities have the necessary tools of enforcement to ensure that markets are competitive and to combat uncompetitive conduct in the digital economy and online markets.
{"title":"An Overview of the Extent of the Powers of South African Competition Authorities in the Regulation of Price Discrimination under the Competition Act 89 of 1998 in the Context of Digital Transformation","authors":"Phemelo Magau","doi":"10.17159/1727-3781/2024/v27i0a17154","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17154","url":null,"abstract":"The purpose of the Competition Act 89 of 1998 as amended (the Competition Act) is, among others, to promote the efficiency, adaptability and development of the economy as well as to provide consumers with competitive prices and product choices. In line with this purpose, the Competition Act provides that a dominant firm is prohibited from engaging in price discrimination if such conduct will likely substantially prevent or lessen competition, which would be to the detriment of consumers. Notably the Competition Act has established various bodies to regulate competition and act against any conduct prohibited by this Act in South Africa. These bodies include the Competition Commission, the Competition Tribunal, and the Competition Appeal Court. Notwithstanding the prohibition of price discrimination, the Competition Act does not expressly provide adequate enforcement tools for competition authorities to combat uncompetitive practices in the digital era. Moreover, the Competition Act does not expressly grant these statutory bodies clear roles and mandates on providing consumers with adequate and suitable redress when they have been victims of algorithmic price discrimination. With recent technological developments, electronic commerce (e-commerce), and digital transformation, consumers have become vulnerable to various challenges such as excessive pricing, data breaches and algorithmic pricing. The online and digital markets are characterised by complex transactions, innovative technologies and business practices which expose all consumers, including vulnerable consumers, to different risks. As such, the role of the competition authorities needs to be recalibrated to enhance consumer protection on the pricing of goods and services. To this end this paper seeks to investigate the role and ambit of the powers of these competition authorities in the regulation of price discrimination in the context of digital transformation and the digital economy. This is done to assess whether the competition authorities have the necessary tools of enforcement to ensure that markets are competitive and to combat uncompetitive conduct in the digital economy and online markets.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"16 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141661071","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}
Pub Date : 2024-07-08DOI: 10.17159/1727-3781/2024/v27i0a15704
Henrike Saunders
In the case of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality the Johannesburg High Court presided over a matter which considered the role of municipal accountability in stormwater management. Schedule 4B of the Constitution of the Republic of South Africa, 1996 provides for basic municipal services such as stormwater management. Schedule 4B outlines other functional areas linked to promoting the right to an environment that is not harmful to one's well-being. These constitutional rights are often infringed upon, and the courts must decide to what extent local government is responsible for the alleged infringements. The courts must further decide to what extent local government accountability can be enforced through structural interdicts. This note contemplates the role of municipal accountability and responsibility in the pursuit of adequate service delivery in urban areas. It highlights the role of legislative interpretation in constitutional matters that relate to government accountability and overlapping mandates. It argues that state entities often shift the blame for their responsibilities. Furthermore, it evaluates the challenges of enforcing municipal accountability in service delivery and argues that public participation plays a key role in holding local government accountable for the delivery of such services.
{"title":"The Municipal Accountability in Service Delivery: Featherbrooke Homeowners Association v Mogale City Local Municipality","authors":"Henrike Saunders","doi":"10.17159/1727-3781/2024/v27i0a15704","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15704","url":null,"abstract":"In the case of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality the Johannesburg High Court presided over a matter which considered the role of municipal accountability in stormwater management. Schedule 4B of the Constitution of the Republic of South Africa, 1996 provides for basic municipal services such as stormwater management. Schedule 4B outlines other functional areas linked to promoting the right to an environment that is not harmful to one's well-being. These constitutional rights are often infringed upon, and the courts must decide to what extent local government is responsible for the alleged infringements. The courts must further decide to what extent local government accountability can be enforced through structural interdicts. This note contemplates the role of municipal accountability and responsibility in the pursuit of adequate service delivery in urban areas. It highlights the role of legislative interpretation in constitutional matters that relate to government accountability and overlapping mandates. It argues that state entities often shift the blame for their responsibilities. Furthermore, it evaluates the challenges of enforcing municipal accountability in service delivery and argues that public participation plays a key role in holding local government accountable for the delivery of such services.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" 1278","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141669091","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}
Pub Date : 2024-07-08DOI: 10.17159/1727-3781/2024/v27i0a15931
L. Masekesa, Oliver Fuo
This article analyses the extent to which the applicable legal and policy frameworks in Zimbabwe enable cities to use spatial planning to pursue the vision encapsulated in SDG 11. This article argues that although the existing legal framework makes adequate provision for features that can hypothetically guide cities to use spatial planning to pursue the vision envisaged in SDG 11, their potential is constrained by diverse factors such as lack of effective public participation in local governance, the inability of local authorities to generate sufficient revenue, systemic corruption in spatial planning processes, and under-utilisation of a flexible and accommodating legal framework. The research is based on an integrated analysis of primary and secondary sources of law.
{"title":"The Potential of Spatial Planning as a Tool for Cities' Pursuit of Sustainable Development Goal 11 in Zimbabwe","authors":"L. Masekesa, Oliver Fuo","doi":"10.17159/1727-3781/2024/v27i0a15931","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15931","url":null,"abstract":"This article analyses the extent to which the applicable legal and policy frameworks in Zimbabwe enable cities to use spatial planning to pursue the vision encapsulated in SDG 11. This article argues that although the existing legal framework makes adequate provision for features that can hypothetically guide cities to use spatial planning to pursue the vision envisaged in SDG 11, their potential is constrained by diverse factors such as lack of effective public participation in local governance, the inability of local authorities to generate sufficient revenue, systemic corruption in spatial planning processes, and under-utilisation of a flexible and accommodating legal framework. The research is based on an integrated analysis of primary and secondary sources of law.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"116 9","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141667559","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}
Pub Date : 2024-07-02DOI: 10.17159/1727-3781/2024/v27i0a15362
Matthews Eddie Nkuna-Mavutane, J. Jamneck
The article investigates the compliance with section 4(1) of the Recognition of Customary Marriages Act (hereafter the RCMA). The section compels spouses in customary marriages to register their marriages within a stipulated period. From the research, it is clear that there is non-compliance with the duty to register customary marriages within the prescribed ninety days after their conclusion. Furthermore, most registered customary marriages are registered only after their first year of existence. Most alarming is that the number of registered customary marriages is rapidly declining. The following factors were found to be reasons why there is non-compliance with the duty to register customary marriages: non-adherence to registration deadlines; absence of a culture of registering customary marriages; contradictions as to the party or parties responsible for registering a customary marriage; lack of a distinction between the process of registering (customary) and solemnising (civil) marriages; the adoption of a non-punitive approach in dealing with the non-registration; poor legislative drafting; the absence of knowledge of the rights and benefits afforded through the RCMA; minimal access to DHA offices and service delivery; the existence of other marriages (umfazi we phepha) and a high regard for civil marriages. The research shows the benefits of registering customary marriages and the adverse effects associated with non-registration. Based on the identified problems and adverse effects, recommendations are made on achieving compliance with the duty to register customary marriages. These recommendations include creating a culture of registering customary marriages, amending certain portions of the RCMA and its regulations, enhancing the registration process, improving literacy and embarking on education-related initiatives.
本文调查了《习惯式婚姻认可法》（以下简称《习惯式婚姻认可法》）第 4(1)条的遵守情况。该条规定，习俗婚姻中的配偶必须在规定期限内进行婚姻登记。从研究结果来看，在习俗婚姻缔结后的九十天内进行登记的义务显然没有得到履行。此外，大多数登记的习俗婚姻都是在结婚一年后才登记的。最令人担忧的是，登记的习俗婚姻数量正在迅速减少。以下因素被认为是不履行习俗婚姻登记义务的原因：不遵守登记期限；缺乏登记习俗婚姻的文化；在负责登记习俗婚姻的一方或多方之间存 在矛盾；没有区分登记（习俗）婚姻和举行婚礼（公证）婚姻的程序；在处理未登记问题时采用非惩罚性方法；法律起草不完善；缺乏对《习俗婚姻法》所赋予的权利和利益的了解；很少有机会进入民政事务部办公室并获得服务；存在其他婚姻（umfazi we phepha）以及对公证结婚的高度重视。研究显示了习俗婚姻登记的好处以及不登记带来的不利影响。根据发现的问题和不利影响，提出了关于履行习俗婚姻登记义务的建议。这些建议包括营造习惯式婚姻登记文化、修订《婚姻登记法》及其条例的某些部分、加强登记程序、提高识字率以及开展与教育有关的活动。
{"title":"Improving Compliance with Section 4(1) of the Recognition of Customary Marriages Act 120 of 1998: Registration of Customary Marriages","authors":"Matthews Eddie Nkuna-Mavutane, J. Jamneck","doi":"10.17159/1727-3781/2024/v27i0a15362","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15362","url":null,"abstract":"The article investigates the compliance with section 4(1) of the Recognition of Customary Marriages Act (hereafter the RCMA). The section compels spouses in customary marriages to register their marriages within a stipulated period. From the research, it is clear that there is non-compliance with the duty to register customary marriages within the prescribed ninety days after their conclusion. Furthermore, most registered customary marriages are registered only after their first year of existence. Most alarming is that the number of registered customary marriages is rapidly declining. The following factors were found to be reasons why there is non-compliance with the duty to register customary marriages: non-adherence to registration deadlines; absence of a culture of registering customary marriages; contradictions as to the party or parties responsible for registering a customary marriage; lack of a distinction between the process of registering (customary) and solemnising (civil) marriages; the adoption of a non-punitive approach in dealing with the non-registration; poor legislative drafting; the absence of knowledge of the rights and benefits afforded through the RCMA; minimal access to DHA offices and service delivery; the existence of other marriages (umfazi we phepha) and a high regard for civil marriages. The research shows the benefits of registering customary marriages and the adverse effects associated with non-registration. Based on the identified problems and adverse effects, recommendations are made on achieving compliance with the duty to register customary marriages. These recommendations include creating a culture of registering customary marriages, amending certain portions of the RCMA and its regulations, enhancing the registration process, improving literacy and embarking on education-related initiatives.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"5 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141686231","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}
Pub Date : 2024-07-01DOI: 10.17159/1727-3781/2024/v27i0a14600
Shannon Bosch
This paper explores the international humanitarian law classification which applies to foreign fighters that have been enlisted in the Ukrainian International Legion of Territorial Defence pursuant to the Russian invasion of Ukraine in 2022. The paper explains the legal rights, obligations and consequences which attach to mercenary, combatant and prisoner of war status; and explores how these foreign members of the Ukrainian International Legion of Territorial Defence fit into this legal landscape. This paper challenges the legality of Russia's decision to classify these individuals as mercenaries. The paper supports the argument that these foreign members of the Ukrainian International Legion of Territorial Defence are entitled to combatant status including full combatant immunity from prosecution upon capture. The paper explores the prisoner of war rights and protections which these individuals should be afforded upon capture and details their denial. The paper re-iterates the international humanitarian law fair trial guarantees which are activated when combatants fall into enemy hands and questions the procedural legality of the trials being conducted in the self-proclaimed Donetsk People's Republic and Russia.
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Pub Date : 2024-07-01DOI: 10.17159/1727-3781/2024/v27i0a17141
Gerda Van Niekerk, Frikkie Ponelis
With the government's focus on combatting public sector corruption and violent crime, the plight of white-collar financial crime in the private sector is of subordinate priority. This contribution seeks to explore means to enhance the capacity of law enforcement agencies to combat white-collar financial crime in the private sector. We clarify the salient terminology and give an overview of the role of financial sector regulators in financial crime prevention in South Africa, focussing on the Financial Sector Regulation Act 9 of 2017. Financial sector regulators have an important role to play against financial crime, though they are dependent on the criminal justice system to protect the financial sector against criminals. This section is followed by an overview of the role and functions of the South African Police Service, the National Prosecuting Authority, and the court system. We identify difficulties which may hinder the prosecution of white-collar financial crime. First, there is a tendency that companies do not investigate conduct that may amount to white-collar financial crime, and otherwise do not report such incidents. Second, there is a need for a specialised and independent law enforcement agency to attend to serious white-collar financial crime. There is also a skills shortage in the National Prosecuting Authority relative to the intricacies of white-collar financial crime. As remedial measures, companies ought to apply the corporate governance principles of King IV more robustly. Artificial intelligence can also be utilised to prevent white-collar financial crimes committed in cyberspace. Private sector agencies should be vested with a more comprehensive duty to report white-collar financial crime to the authorities, and the protection and scope of whistle-blowers should be increased. We propose the introduction of Deferred Prosecution Agreements, as well as cooperation between the State and the private sector, to weaken capacity constraints in the prosecution process.
{"title":"Strengthening Law Enforcement to Address White-Collar Financial Crime in South Africa's Private Sector","authors":"Gerda Van Niekerk, Frikkie Ponelis","doi":"10.17159/1727-3781/2024/v27i0a17141","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17141","url":null,"abstract":"With the government's focus on combatting public sector corruption and violent crime, the plight of white-collar financial crime in the private sector is of subordinate priority. This contribution seeks to explore means to enhance the capacity of law enforcement agencies to combat white-collar financial crime in the private sector.\u0000We clarify the salient terminology and give an overview of the role of financial sector regulators in financial crime prevention in South Africa, focussing on the Financial Sector Regulation Act 9 of 2017. Financial sector regulators have an important role to play against financial crime, though they are dependent on the criminal justice system to protect the financial sector against criminals. This section is followed by an overview of the role and functions of the South African Police Service, the National Prosecuting Authority, and the court system. We identify difficulties which may hinder the prosecution of white-collar financial crime. First, there is a tendency that companies do not investigate conduct that may amount to white-collar financial crime, and otherwise do not report such incidents. Second, there is a need for a specialised and independent law enforcement agency to attend to serious white-collar financial crime. There is also a skills shortage in the National Prosecuting Authority relative to the intricacies of white-collar financial crime.\u0000As remedial measures, companies ought to apply the corporate governance principles of King IV more robustly. Artificial intelligence can also be utilised to prevent white-collar financial crimes committed in cyberspace. Private sector agencies should be vested with a more comprehensive duty to report white-collar financial crime to the authorities, and the protection and scope of whistle-blowers should be increased. We propose the introduction of Deferred Prosecution Agreements, as well as cooperation between the State and the private sector, to weaken capacity constraints in the prosecution process.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"8 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141703076","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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