Pub Date : 2023-08-28DOI: 10.17159/1727-3781/2023/v26i0a14689
F. Moosa
Unlike during the apartheid era, high courts are no longer the terrain of advocates solely. By law, qualifying attorneys have a right of audience there. When attorneys render services usually performed by advocates and they secure a party-and-party costs order for their clients, then a question arising is whether the unsuccessful litigant is liable to indemnify the successful litigant on the lower tariff ordinarily applicable to attorneys' fees under Uniform Rule 70, or the higher tariff of reasonable fees applied to advocates under Uniform Rule 69. This important issue in the law of costs forms the core subject of this article. It engages therewith through a critical analysis of the prevailing case law dealing with Uniform Rule 70(3) read with Uniform Rule 70 tariff item A(10), as well as an application of the mandatory interpretive directive in section 39(2) of the Constitution of the Republic of South Africa, 1996 taken with the tools of textual, contextual and purposive interpretation. This article argues that Taxing Masters, as gatekeepers of fairness and practicality in determining the recoverability of litigation costs, cannot when taxing a party-and-party bill apply one standard or set of rules for assessing advocates' fees in relation to high court work and then apply another for assessing attorneys' fees for doing the same (or substantially the same) work. Such a situation would be inimical to the tenets of the rule of law promoting justice and equity which apply at a taxation, being a legal proceeding in a forum envisaged by section 34 of the Constitution. This article argues further that Taxing Masters must embrace the salutary principle that attorneys are entitled to equal pay for equal work done as counsel, and that a contrary approach would endorse the notion that advocates are more equal than attorneys, a view antithetical to the values of and fundamental rights to dignity and equality entrenched in the Constitution, all of which find application when a Taxing Master exercises his public powers under Uniform Rule 70(1).
{"title":"Taxation of Litigation Costs under Uniform Rule 70: Attorneys Acting as Counsel are Entitled to Equal Reimbursement for Equal Work by Advocates","authors":"F. Moosa","doi":"10.17159/1727-3781/2023/v26i0a14689","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14689","url":null,"abstract":"Unlike during the apartheid era, high courts are no longer the terrain of advocates solely. By law, qualifying attorneys have a right of audience there. When attorneys render services usually performed by advocates and they secure a party-and-party costs order for their clients, then a question arising is whether the unsuccessful litigant is liable to indemnify the successful litigant on the lower tariff ordinarily applicable to attorneys' fees under Uniform Rule 70, or the higher tariff of reasonable fees applied to advocates under Uniform Rule 69. This important issue in the law of costs forms the core subject of this article. It engages therewith through a critical analysis of the prevailing case law dealing with Uniform Rule 70(3) read with Uniform Rule 70 tariff item A(10), as well as an application of the mandatory interpretive directive in section 39(2) of the Constitution of the Republic of South Africa, 1996 taken with the tools of textual, contextual and purposive interpretation.\u0000This article argues that Taxing Masters, as gatekeepers of fairness and practicality in determining the recoverability of litigation costs, cannot when taxing a party-and-party bill apply one standard or set of rules for assessing advocates' fees in relation to high court work and then apply another for assessing attorneys' fees for doing the same (or substantially the same) work. Such a situation would be inimical to the tenets of the rule of law promoting justice and equity which apply at a taxation, being a legal proceeding in a forum envisaged by section 34 of the Constitution. This article argues further that Taxing Masters must embrace the salutary principle that attorneys are entitled to equal pay for equal work done as counsel, and that a contrary approach would endorse the notion that advocates are more equal than attorneys, a view antithetical to the values of and fundamental rights to dignity and equality entrenched in the Constitution, all of which find application when a Taxing Master exercises his public powers under Uniform Rule 70(1).","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41912703","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 : 2023-08-18DOI: 10.17159/1727-3781/2023/v26i0a15506
A. De Man
In 2020 the Coronavirus disease 2019 (COVID-19) spread across the globe at a seemingly unstoppable rate. Countries implemented various lockdown regulations to curb the spread of the virus. South Africa was no different and went into lockdown on 26 March 2020 under a five-tier risk-adjusted strategy. Under the regulations, all non-essential economic activity was immediately suspended. This had dire financial consequences for all in the country. However, statistics show that the poorest and most vulnerable in society have borne a disproportionate brunt of the impact of the economic restrictions. In this context this article asks whether the economic restrictions implemented under the lockdown regulations (as promulgated in terms of the Disaster Management Act 57 of 2002) discriminated unfairly on the grounds of poverty. This is in line with a 2018 decision by the Equality Court of South Africa that poverty constitutes unlisted grounds for discrimination as envisioned under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Social Justice Coalition v Minister of Police 2019 42 SA 82 (WCC)). In this article, the test for unfair discrimination laid down in Harksen v Lane 1998 1 SA 300 (CC) is applied to the economic restrictions implemented under the lockdown regulations to determine whether they constitute unfair discrimination. It is argued that a case of indirect discrimination on the grounds of poverty could be made. However, determining the justifiability (in terms of section 36 of the Constitution of the Republic of South Africa, 1996) of the regulations would require a thorough analysis based on expert evidence. Nevertheless this article lays the foundation for an actionable case that could be brought before a court against the government of South Africa on behalf of a specific community to determine whether the economic restrictions were unfairly discriminatory on the grounds of poverty. This would allow for the consideration of a suitable remedy. This could include the formulation and implementation of development programmes to rectify the harm caused.
2020年，2019冠状病毒病(COVID-19)以似乎不可阻挡的速度在全球蔓延。各国实施了各种封锁规定，以遏制病毒的传播。南非也不例外，根据五层风险调整战略，南非于2020年3月26日进入封锁状态。根据规定，所有非必要的经济活动立即暂停。这给该国所有人带来了可怕的财政后果。然而，统计数字表明，社会上最贫穷和最脆弱的人在经济限制的影响中承受了不成比例的冲击。在这方面，本文询问，根据封锁条例(根据2002年第57号《灾害管理法》颁布)实施的经济限制是否存在以贫困为理由的不公平歧视。这符合南非平等法院2018年的一项决定，即根据2000年第4号《促进平等和防止不公平歧视法》(社会正义联盟诉警察部长，2019年42 SA 82 (WCC))的设想，贫困构成未列入的歧视理由。在本文中，Harksen诉Lane案1998年1 SA 300 (CC)中规定的不公平歧视检验标准适用于根据封锁条例实施的经济限制，以确定它们是否构成不公平歧视。有人认为，可以提出以贫穷为理由的间接歧视案件。但是，确定这些条例的合理性(根据1996年《南非共和国宪法》第36条)需要根据专家证据进行彻底的分析。然而，该条为一个可起诉的案件奠定了基础，该案件可代表一个特定社区向法院起诉南非政府，以确定经济限制是否因贫穷而具有不公平的歧视性。这将允许考虑适当的补救办法。这可包括制订和执行发展方案，以纠正所造成的损害。
{"title":"\"It is the Poor Who Will Suffer the Most\": The Discriminatory Impact of Covid-19 Lockdown Restrictions on the Poor in South Africa","authors":"A. De Man","doi":"10.17159/1727-3781/2023/v26i0a15506","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15506","url":null,"abstract":"In 2020 the Coronavirus disease 2019 (COVID-19) spread across the globe at a seemingly unstoppable rate. Countries implemented various lockdown regulations to curb the spread of the virus. South Africa was no different and went into lockdown on 26 March 2020 under a five-tier risk-adjusted strategy. Under the regulations, all non-essential economic activity was immediately suspended. This had dire financial consequences for all in the country. However, statistics show that the poorest and most vulnerable in society have borne a disproportionate brunt of the impact of the economic restrictions. In this context this article asks whether the economic restrictions implemented under the lockdown regulations (as promulgated in terms of the Disaster Management Act 57 of 2002) discriminated unfairly on the grounds of poverty. This is in line with a 2018 decision by the Equality Court of South Africa that poverty constitutes unlisted grounds for discrimination as envisioned under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Social Justice Coalition v Minister of Police 2019 42 SA 82 (WCC)). In this article, the test for unfair discrimination laid down in Harksen v Lane 1998 1 SA 300 (CC) is applied to the economic restrictions implemented under the lockdown regulations to determine whether they constitute unfair discrimination. It is argued that a case of indirect discrimination on the grounds of poverty could be made. However, determining the justifiability (in terms of section 36 of the Constitution of the Republic of South Africa, 1996) of the regulations would require a thorough analysis based on expert evidence. Nevertheless this article lays the foundation for an actionable case that could be brought before a court against the government of South Africa on behalf of a specific community to determine whether the economic restrictions were unfairly discriminatory on the grounds of poverty. This would allow for the consideration of a suitable remedy. This could include the formulation and implementation of development programmes to rectify the harm caused.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67469531","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 : 2023-08-11DOI: 10.17159/1727-3781/2023/v26i0a15340
Krisdan Bezuidenhout
Climate change is one of the most significant challenges of the 21st century. To combat climate change the international community has agreed to keep the average temperature increase well below 2°C above pre-industrial levels. Despite this consideration, the latest scientific evidence suggests that the planet has already warmed by 1.1°C above pre-industrial levels. The slow reaction by national governments to reducing greenhouse gas emissions has prompted cities to take ownership of climate change mitigation action and drive global intervention from the sub-national level. These urban areas are home to more than half of the world's population and have immense energy requirements, and typically rely heavily on fossil fuels to meet this demand. Therefore, a shift to city level climate governance is significant as cities are both the victims and the culprits of climate change. Should cities supplant fossil fuels with renewable energy initiatives in meeting their energy demands, this would provide a significant boost to climate change mitigation efforts. Bioenergy as a form of renewable energy can potentially contribute to the energy mix in cities through biomass exploitation while simultaneously addressing climate change mitigation efforts. This article focusses on the role of bioenergy in the energy discourse in cities and the potential of law and policy to contribute to developing these biomass-based systems. The article provides insight into the South African bioenergy regulatory framework from an energy and climate change perspective and offers an account of what bioenergy can contribute to cities when considering the transition to a low-carbon economy.
{"title":"Climate Change Mitigation At City Level Through The Lens Of South Africa's Regulatory Framework For Bioenergy","authors":"Krisdan Bezuidenhout","doi":"10.17159/1727-3781/2023/v26i0a15340","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15340","url":null,"abstract":"Climate change is one of the most significant challenges of the 21st century. To combat climate change the international community has agreed to keep the average temperature increase well below 2°C above pre-industrial levels. Despite this consideration, the latest scientific evidence suggests that the planet has already warmed by 1.1°C above pre-industrial levels. The slow reaction by national governments to reducing greenhouse gas emissions has prompted cities to take ownership of climate change mitigation action and drive global intervention from the sub-national level. These urban areas are home to more than half of the world's population and have immense energy requirements, and typically rely heavily on fossil fuels to meet this demand. Therefore, a shift to city level climate governance is significant as cities are both the victims and the culprits of climate change. Should cities supplant fossil fuels with renewable energy initiatives in meeting their energy demands, this would provide a significant boost to climate change mitigation efforts. Bioenergy as a form of renewable energy can potentially contribute to the energy mix in cities through biomass exploitation while simultaneously addressing climate change mitigation efforts. This article focusses on the role of bioenergy in the energy discourse in cities and the potential of law and policy to contribute to developing these biomass-based systems. The article provides insight into the South African bioenergy regulatory framework from an energy and climate change perspective and offers an account of what bioenergy can contribute to cities when considering the transition to a low-carbon economy.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46955739","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 : 2023-07-25DOI: 10.17159/1727-3781/2023/v26i0a15696
John-Martin Goetsch
Historically, if a creditor through his conduct prejudiced or injured a surety in the latter's rights or interest, the surety was entitled to claim release from his obligations under the general prejudice principle. However, the principle was summarily rejected by the Supreme Court of Appeal in Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA), and it may now be determined whether there exists another interpretation in order to ensure its survival. This article considers the historical application of the general prejudice principle in suretyship agreements under South African law since the principle’s original incorporation from the English law up until its outright rejection by the Supreme Court of Appeal in Bock. It then aims to reinterpret the principle in the light of ordinary contract law principles as being nothing more than a breach of contract by the creditor.
在历史上，如果债权人的行为损害或者损害了保证人的权益，保证人有权根据一般损害原则要求免除其义务。然而，在Bock v Dubororo Investments (Pty) Ltd 2004年2 SA 242 (SCA)一案中，最高上诉法院立即驳回了这一原则，现在可能要确定是否存在另一种解释以确保其生存。本文考察了一般损害原则在南非法律下的保证协议中的历史适用，从该原则最初被英国法律纳入到最高上诉法院在博克案中彻底驳回为止。然后，它旨在根据普通合同法原则重新解释这一原则，认为这只不过是债权人违约。
{"title":"Repackaging the General Prejudice Principle in Suretyship Agreements as a Breach of Contract under South African Law","authors":"John-Martin Goetsch","doi":"10.17159/1727-3781/2023/v26i0a15696","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15696","url":null,"abstract":"Historically, if a creditor through his conduct prejudiced or injured a surety in the latter's rights or interest, the surety was entitled to claim release from his obligations under the general prejudice principle. However, the principle was summarily rejected by the Supreme Court of Appeal in Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA), and it may now be determined whether there exists another interpretation in order to ensure its survival. This article considers the historical application of the general prejudice principle in suretyship agreements under South African law since the principle’s original incorporation from the English law up until its outright rejection by the Supreme Court of Appeal in Bock. It then aims to reinterpret the principle in the light of ordinary contract law principles as being nothing more than a breach of contract by the creditor.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43240553","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 : 2023-07-07DOI: 10.17159/1727-3781/2023/v26i0a15469
S. van der Merwe
To provide society with the benefit of an effective emolument attachment order (EAO) environment, several role-players must fulfil essential interconnected functions. The process relies on the cooperation of the garnishee (the employer of the EAO debtor), who is responsible for the periodic deductions from the employees' salary and the transfer of these funds to the creditor(s). Employers therefore carry an administrative burden to maintain the human resource capacity and administrative systems necessary to properly enforce EAOs. In addition to this administrative duty, employers are at risk of incurring personal liability vis a vis the creditor as well as the debtor. This article will highlight the risk to employers in the administration of EAOs, specifically arising from the legal uncertainty regarding proportionality in EAO deductions. The article describes the current legislative framework and its relevant frailty. It then delineates the scope of the study by exploring the concept of proportionality within the context of EAOs. This is followed with a summary of the relevant historic and contemporary context, before dealing with the prevailing EAO-related challenges. Although a detailed comparative analysis falls outside the scope of this article, it also contains a brief overview of how these challenges regarding proportionality in wage garnishment are managed in England and the United States of America. The contribution concludes with recommendations based on the research findings. Ultimately, the author submits that employers are currently more at risk from liability for the maladministration of their employees' EAOs than they may generally appreciate and that proactive steps should be taken to address the situation.
{"title":"Caught in the Crossfire: Employers of Emolument Attachment Order Debtors and the Challenge to Achieve Proportionally Fair Wage Deductions","authors":"S. van der Merwe","doi":"10.17159/1727-3781/2023/v26i0a15469","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15469","url":null,"abstract":"To provide society with the benefit of an effective emolument attachment order (EAO) environment, several role-players must fulfil essential interconnected functions. The process relies on the cooperation of the garnishee (the employer of the EAO debtor), who is responsible for the periodic deductions from the employees' salary and the transfer of these funds to the creditor(s). Employers therefore carry an administrative burden to maintain the human resource capacity and administrative systems necessary to properly enforce EAOs. In addition to this administrative duty, employers are at risk of incurring personal liability vis a vis the creditor as well as the debtor. This article will highlight the risk to employers in the administration of EAOs, specifically arising from the legal uncertainty regarding proportionality in EAO deductions. The article describes the current legislative framework and its relevant frailty. It then delineates the scope of the study by exploring the concept of proportionality within the context of EAOs. This is followed with a summary of the relevant historic and contemporary context, before dealing with the prevailing EAO-related challenges. Although a detailed comparative analysis falls outside the scope of this article, it also contains a brief overview of how these challenges regarding proportionality in wage garnishment are managed in England and the United States of America. The contribution concludes with recommendations based on the research findings. Ultimately, the author submits that employers are currently more at risk from liability for the maladministration of their employees' EAOs than they may generally appreciate and that proactive steps should be taken to address the situation.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48368034","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 : 2023-06-21DOI: 10.17159/1727-3781/2023/v26i0a14103
Brenda Nanyunja, W. Nortje
This article investigates the challenges of the application of international law in a domestic setting as depicted in the ongoing trial of Thomas Kwoyelo. Kwoyelo, a former child soldier and commander in the Lord's Resistance Army, is being prosecuted for the commission inter alia of murder, kidnapping with intent to murder, and pillaging, all as war crimes and crimes against humanity under International Humanitarian Law, Customary International Law and the Penal Code Act of Uganda. He is currently standing trial at the International Crimes Division of the High Court of Uganda. This trial is a unique test for the Ugandan judiciary, as it is faced with its first prosecution of an individual charged with crimes under international law. In a bid to apply international law domestically the Court has faced several challenges which have disabled the progress of the trial on many levels, arguably at the expense of the accused and the victims at large. The article primarily seeks to analyse the capability of the court to prosecute Kwoyelo for the commission of international crimes as well as to examine the challenges faced by the Court. The history of the conflict will be examined. This will be followed by an overview of the judicial hurdles faced by the Ugandan State in eventually charging Kwoyelo. The article will then analyse the present challenges faced by the Court. Finally, several recommendations are offered.
{"title":"Justice Delayed but not Denied: The Prosecution of Thomas Kwoyelo for International Crimes in Uganda","authors":"Brenda Nanyunja, W. Nortje","doi":"10.17159/1727-3781/2023/v26i0a14103","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14103","url":null,"abstract":"This article investigates the challenges of the application of international law in a domestic setting as depicted in the ongoing trial of Thomas Kwoyelo. Kwoyelo, a former child soldier and commander in the Lord's Resistance Army, is being prosecuted for the commission inter alia of murder, kidnapping with intent to murder, and pillaging, all as war crimes and crimes against humanity under International Humanitarian Law, Customary International Law and the Penal Code Act of Uganda. He is currently standing trial at the International Crimes Division of the High Court of Uganda. This trial is a unique test for the Ugandan judiciary, as it is faced with its first prosecution of an individual charged with crimes under international law. In a bid to apply international law domestically the Court has faced several challenges which have disabled the progress of the trial on many levels, arguably at the expense of the accused and the victims at large. The article primarily seeks to analyse the capability of the court to prosecute Kwoyelo for the commission of international crimes as well as to examine the challenges faced by the Court. The history of the conflict will be examined. This will be followed by an overview of the judicial hurdles faced by the Ugandan State in eventually charging Kwoyelo. The article will then analyse the present challenges faced by the Court. Finally, several recommendations are offered.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43331466","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 : 2023-06-20DOI: 10.17159/1727-3781/2023/v26i0a14640
Sheena Swemmer
In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged perpetrators to counter and silence survivors. This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist. It will be argued that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal justice system. Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators.
近年来，全球和地方出现了反性别暴力运动，如#MeToo，以及在南非出现的#menaretrash，这促使幸存者更多地披露被指控的性暴力肇事者的姓名。随着披露这些名字的增加，被指控的犯罪者加强了法律程序，以对抗幸存者并使其沉默。本案例说明将重点关注最近在开普敦西开普省南非高等法院审理的S v P 2022 2 SACR 81（WCC）上诉案。在本案中，法院必须考虑法院在针对上诉人（S）发布最终保护令（根据2011年第17号《防止骚扰法》）时的现状是否正确，因为法院认为她的骚扰行为是第三方公开披露被告（P）为强奸犯。有人认为，西开普省高等法院认为，法院不应该对S发布最终保护令，这是正确的。还有人认为，推翻这一决定的原因包括法院没有意识到《防止骚扰法》的性别目的，以及P滥用和滥用该法来压制S。然后会有人认为，幸存者选择在社交平台上披露被指控肇事者姓名的原因之一是一个社会背景原因，其中包括南非基于性别的暴力发生率高，以及刑事司法系统中基于性别暴力案件的流失率高。最后，我将考虑2021年4月20日Mdlekeza诉Gallie 2021（WCHC）（未报告）第15490/2020号案件和2012年8月30日Booysen诉Major（WCHC，未报告）5043/2021号案件，并认为这些案件是这种滥用程序压制幸存者的进一步例子。随着法院越来越多地申请让受害者噤声，有人认为，法院必须采取女权主义的情境化方法，以避免堵住基于性别的暴力的幸存者的嘴，避免被指控的犯罪者越来越多地将法庭程序武器化。
{"title":"S v P – The Abuse of Protection Orders to \"Gag\" Victims of Rape","authors":"Sheena Swemmer","doi":"10.17159/1727-3781/2023/v26i0a14640","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14640","url":null,"abstract":"In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged perpetrators to counter and silence survivors.\u0000This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist.\u0000It will be argued that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal justice system.\u0000Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47975374","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 : 2023-06-13DOI: 10.17159/1727-3781/2023/v26i0a15441
Alexander Paterson
Area-based approaches are a central component of global efforts to conserve biodiversity. While the focus of many countries has been mainly on protected areas, other effective area-based conservation measures (OECMS) have been accorded global recognition in the past decade as a vital complementary approach to protected areas. This recognition has been reemphasised in the Kunming-Montreal Global Biodiversity Framework adopted by parties to the Convention on Biological Diversity in December 2022, with its Target 3 ratchetting up area-based coverage targets to 30 per cent by 2030. A growing focus and reliance on OECMs to contribute towards achieving this target is anticipated. The international community has in the past few years introduced some guidance to identify, secure, manage, monitor and verify the anticipated long-term biodiversity conservation outcomes of OECMs. Some commentators have argued for domestic legal intervention to complement this general international guidance. The South African Government has recognised the potential contribution of OECMs towards the achievement of domestic and global area-based biodiversity targets in its National Protected Areas Expansion Strategy (2018) but has alluded to the need for legal intervention to ensure that they achieve positive and sustained long-term outcomes for the in situ conservation of biodiversity. Some domestic commentators have highlighted the strong link between biodiversity stewardship (particularly conservation areas) and OECMs, advocating that these conservation areas should form the priority focus of domestic efforts to identify OECMs. This article scopes this potential link and specifically considers whether the current domestic legal and policy framework applicable to these conservation areas is sufficiently robust to ensure that only appropriate areas are identified as OECMs and that once recognised, they are governed and effectively managed in the long term. It highlights several frailties of the existing framework and drawing from anticipated legal reform in the Western Cape relating to biodiversity stewardship, it proposes a possible model for future national legislation regulating OECMs.
{"title":"Other Effective Area-Based Conservation Measures, Biodiversity Stewardship and Statutory Intervention – A South African Perspective","authors":"Alexander Paterson","doi":"10.17159/1727-3781/2023/v26i0a15441","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15441","url":null,"abstract":"Area-based approaches are a central component of global efforts to conserve biodiversity. While the focus of many countries has been mainly on protected areas, other effective area-based conservation measures (OECMS) have been accorded global recognition in the past decade as a vital complementary approach to protected areas. This recognition has been reemphasised in the Kunming-Montreal Global Biodiversity Framework adopted by parties to the Convention on Biological Diversity in December 2022, with its Target 3 ratchetting up area-based coverage targets to 30 per cent by 2030. A growing focus and reliance on OECMs to contribute towards achieving this target is anticipated. The international community has in the past few years introduced some guidance to identify, secure, manage, monitor and verify the anticipated long-term biodiversity conservation outcomes of OECMs. Some commentators have argued for domestic legal intervention to complement this general international guidance. The South African Government has recognised the potential contribution of OECMs towards the achievement of domestic and global area-based biodiversity targets in its National Protected Areas Expansion Strategy (2018) but has alluded to the need for legal intervention to ensure that they achieve positive and sustained long-term outcomes for the in situ conservation of biodiversity. Some domestic commentators have highlighted the strong link between biodiversity stewardship (particularly conservation areas) and OECMs, advocating that these conservation areas should form the priority focus of domestic efforts to identify OECMs. This article scopes this potential link and specifically considers whether the current domestic legal and policy framework applicable to these conservation areas is sufficiently robust to ensure that only appropriate areas are identified as OECMs and that once recognised, they are governed and effectively managed in the long term. It highlights several frailties of the existing framework and drawing from anticipated legal reform in the Western Cape relating to biodiversity stewardship, it proposes a possible model for future national legislation regulating OECMs.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44981370","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 : 2023-06-13DOI: 10.17159/1727-3781/2023/v26i0a15700
Raheel Ahmed
American and French law, like South African law recognises claims for emotional or mental harm. Emotional, mental, or psychological harm was only recognised by the courts in the 1800's and even though the mind and body in a sense is considered as a unit, these types of claims are not on par with claims for physical bodily injury. In fact, these types of claims can be regarded as sui generis but within the broader ambit of delictual or tort liability. Finding delictual or tort liability for emotional, mental or psychological harm has been problematic not only in South Africa but also in the United States of America and France. Even though there are fundamental differences in the law between these jurisdictions, the broader questions the courts face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with these types of claims. Limiting liability for emotional or mental harm is generally the main policy concern but the courts have found ways of using the elements or concepts such as reasonable foreseeability of harm to limit the claims. American, French, and South African law recognise claims for emotional, mental or psychological harm by primary and secondary victims. Thus emotional, mental, or psychological harm caused directly or indirectly is compensable. In American and French law, the concept of reasonableness plays an important role, whether it be implicit or explicit, in determining delictual or tort liability for emotional or mental harm. In a sense also, reasonableness plays an overarching role in determing the liability. In a previous contribution, the influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law was discussed. In this contribution, the focus is on the influence of reasonableness in determining delictual or tort liability for emotional or mental harm in American and French law.
{"title":"The Influence of Reasonableness in Determining Delictual or Tort Liability for Emotional Distress or Mental Harm in American and French Law","authors":"Raheel Ahmed","doi":"10.17159/1727-3781/2023/v26i0a15700","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15700","url":null,"abstract":"American and French law, like South African law recognises claims for emotional or mental harm. Emotional, mental, or psychological harm was only recognised by the courts in the 1800's and even though the mind and body in a sense is considered as a unit, these types of claims are not on par with claims for physical bodily injury. In fact, these types of claims can be regarded as sui generis but within the broader ambit of delictual or tort liability. Finding delictual or tort liability for emotional, mental or psychological harm has been problematic not only in South Africa but also in the United States of America and France. Even though there are fundamental differences in the law between these jurisdictions, the broader questions the courts face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with these types of claims. Limiting liability for emotional or mental harm is generally the main policy concern but the courts have found ways of using the elements or concepts such as reasonable foreseeability of harm to limit the claims. American, French, and South African law recognise claims for emotional, mental or psychological harm by primary and secondary victims. Thus emotional, mental, or psychological harm caused directly or indirectly is compensable. In American and French law, the concept of reasonableness plays an important role, whether it be implicit or explicit, in determining delictual or tort liability for emotional or mental harm. In a sense also, reasonableness plays an overarching role in determing the liability. In a previous contribution, the influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law was discussed. In this contribution, the focus is on the influence of reasonableness in determining delictual or tort liability for emotional or mental harm in American and French law.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46433674","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 : 2023-06-12DOI: 10.17159/1727-3781/2023/v26i0a13371
Shadi Maganoe
A glance at political theory reveals a preoccupation with the corrosive nature of power, in particular with how to ensure that the governors are sufficiently accountable to the governed. Legislative oversight is a constitutional requirement in the South African system of government. However, poor performance, maladministration and a lack of accountability in various government institutions have continued to be a major challenge. In recent years the implementation of legislative oversight has proven to be a challenge, with findings of abuse of state power revealed by reports from the Office of the Public Protector as well as corruption scandals in procurement processes. This study examines the role of parliament in holding the executive accountable in line with the constitutional values of transparency, accountability and responsiveness. Apart from delineating the reach of parliament's powers and functions, the main thrust of the study, given the existing vicissitudes in our constitutional edifice, including the failure of parliament to hold the executive accountable, is on how to strengthen the institution of parliament in its oversight role.
{"title":"Legislative Oversight and Executive Accountability in South Africa","authors":"Shadi Maganoe","doi":"10.17159/1727-3781/2023/v26i0a13371","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a13371","url":null,"abstract":"A glance at political theory reveals a preoccupation with the corrosive nature of power, in particular with how to ensure that the governors are sufficiently accountable to the governed. Legislative oversight is a constitutional requirement in the South African system of government. However, poor performance, maladministration and a lack of accountability in various government institutions have continued to be a major challenge. In recent years the implementation of legislative oversight has proven to be a challenge, with findings of abuse of state power revealed by reports from the Office of the Public Protector as well as corruption scandals in procurement processes. This study examines the role of parliament in holding the executive accountable in line with the constitutional values of transparency, accountability and responsiveness. Apart from delineating the reach of parliament's powers and functions, the main thrust of the study, given the existing vicissitudes in our constitutional edifice, including the failure of parliament to hold the executive accountable, is on how to strengthen the institution of parliament in its oversight role.\u0000 ","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46134199","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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