Pub Date : 2024-06-05DOI: 10.17159/1727-3781/2024/v27i0a15131
Nicole Bouah, Carmel Jacobs
This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity
{"title":"A Child's Right to Identity in the Context of Embryo Donation: Part 1","authors":"Nicole Bouah, Carmel Jacobs","doi":"10.17159/1727-3781/2024/v27i0a15131","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15131","url":null,"abstract":"This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"49 45","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141384274","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 : 2024-06-05DOI: 10.17159/1727-3781/2024/v27i0a15132
Nicole Bouah, Carmel Jacobs
In part 1 of this article, the current level of protection for the right to identity both at the national and international levels were considered in the case of embryo donation. It was concluded that at a national level the NHA, its accompanying regulations and the Children’s Act fail to protect this right. The constitutional provisions on children’s rights are further unhelpful in providing the requisite level of protection. At an international level it was further found that neither the CRC or the ACRWC explicitly uphold the child’s right to identity in the case of embryo donation. In an attempt to address this defect, this article draws comparisons on the legal protection provided for the right to identity of children born through embryo donation in Australia and New Zealand. A number of lessons can be drawn from this comparative analysis. At a national level, the article submits that the birth certificate should indicate the child’s true origins and in addition to a register which holds the particulars of the child’s donor parents, a separate donor sibling register is also suggested. Legislative amendments are also suggested to Parliament. At an international level, the following recommendations are made: a new UN Convention which is centred around Assisted Reproductive Technology, a General Comment drafted by the Convention on the Rights of the Child to cover specific issues and interests of children, ratification of a Convention by the Hague Conference, and an investigation into the concerns raised by international embryo donation to be carried out by the International Social Service Network. Further, the article concludes that an African based instrument would not be as effective as a UN proposed solution given the cultural and religious concerns in traditional African societies.
{"title":"A Child's Right to Identity in the Context of Embryo Donation: Lessons from Australia and New Zealand, Part 2","authors":"Nicole Bouah, Carmel Jacobs","doi":"10.17159/1727-3781/2024/v27i0a15132","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15132","url":null,"abstract":"In part 1 of this article, the current level of protection for the right to identity both at the national and international levels were considered in the case of embryo donation. It was concluded that at a national level the NHA, its accompanying regulations and the Children’s Act fail to protect this right. The constitutional provisions on children’s rights are further unhelpful in providing the requisite level of protection. At an international level it was further found that neither the CRC or the ACRWC explicitly uphold the child’s right to identity in the case of embryo donation. In an attempt to address this defect, this article draws comparisons on the legal protection provided for the right to identity of children born through embryo donation in Australia and New Zealand. A number of lessons can be drawn from this comparative analysis. At a national level, the article submits that the birth certificate should indicate the child’s true origins and in addition to a register which holds the particulars of the child’s donor parents, a separate donor sibling register is also suggested. Legislative amendments are also suggested to Parliament. At an international level, the following recommendations are made: a new UN Convention which is centred around Assisted Reproductive Technology, a General Comment drafted by the Convention on the Rights of the Child to cover specific issues and interests of children, ratification of a Convention by the Hague Conference, and an investigation into the concerns raised by international embryo donation to be carried out by the International Social Service Network. Further, the article concludes that an African based instrument would not be as effective as a UN proposed solution given the cultural and religious concerns in traditional African societies.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"42 26","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141384696","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 : 2024-03-04DOI: 10.17159/1727-3781/2023/v26i0a15758
Helga Schultz, Warren Freedman
Social plugins are one of the many trackers used by companies with an online presence. However, under the Protection of Personal Information Act 4 of 2013 (POPI), these trackers have certain legal consequences for internet users. The main reason for this is that trackers tend to process personal information without informing internet users that their data are being collected, the reason for the collection or processing thereof, or who the responsible parties are that are collecting and processing the personal information. The article looks at these issues, amongst others, in the light of a 2019 judgment from the Court of Justice of the European Union or CJEU, namely, Case C-40/17 Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW e.V. EU:C:2019:629. Due to the fact that it has had data protection legislation for much longer than other countries or legal jurisdictions, including South Africa, the European Union (the EU) has a substantial body of case law interpreting the data protection legislation of the EU itself as well as that of the individual member states. One of the main instruments used as guidance by the drafters of POPI was Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (hereafter Directive 95/46). Directive 95/46 was previously considered the gold standard, before Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) (hereafter the GDPR) was enacted and Directive 95/46/EC was finally repealed. Since Directive 95/46 was one of the main guiding documents used in drafting POPI, one may expect that the South African courts may turn to the EU and consider how the CJEU has interpreted the similar provisions contained in Directive 95/46, especially since there is very little South African jurisprudence available on POPI. The four main issues under discussion are: who, other than the internet users, has the locus standi to bring an application in terms of POPI? Second, what are the responsibilities of joint responsible parties towards internet users? Third, where there are joint responsible parties, do both need a legitimate interest to process personal information? Lastly, who will be responsible for obtaining the necessary consent to process the personal data?
{"title":"Plugins and POPI: A Critical Discussion into the Legal Implications of Social Plugins and the Protection of Personal Information","authors":"Helga Schultz, Warren Freedman","doi":"10.17159/1727-3781/2023/v26i0a15758","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15758","url":null,"abstract":"Social plugins are one of the many trackers used by companies with an online presence. However, under the Protection of Personal Information Act 4 of 2013 (POPI), these trackers have certain legal consequences for internet users. The main reason for this is that trackers tend to process personal information without informing internet users that their data are being collected, the reason for the collection or processing thereof, or who the responsible parties are that are collecting and processing the personal information. The article looks at these issues, amongst others, in the light of a 2019 judgment from the Court of Justice of the European Union or CJEU, namely, Case C-40/17 Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW e.V. EU:C:2019:629. Due to the fact that it has had data protection legislation for much longer than other countries or legal jurisdictions, including South Africa, the European Union (the EU) has a substantial body of case law interpreting the data protection legislation of the EU itself as well as that of the individual member states. One of the main instruments used as guidance by the drafters of POPI was Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (hereafter Directive 95/46). Directive 95/46 was previously considered the gold standard, before Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) (hereafter the GDPR) was enacted and Directive 95/46/EC was finally repealed. Since Directive 95/46 was one of the main guiding documents used in drafting POPI, one may expect that the South African courts may turn to the EU and consider how the CJEU has interpreted the similar provisions contained in Directive 95/46, especially since there is very little South African jurisprudence available on POPI. The four main issues under discussion are: who, other than the internet users, has the locus standi to bring an application in terms of POPI? Second, what are the responsibilities of joint responsible parties towards internet users? Third, where there are joint responsible parties, do both need a legitimate interest to process personal information? Lastly, who will be responsible for obtaining the necessary consent to process the personal data?","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"95 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140079632","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 : 2024-02-29DOI: 10.17159/1727-3781/2024/v27i0a17366
Natasha Ravyse, Michael Laubscher
Initiated against the backdrop of the NWU Faculty of Law's inaugural "Justice in Practice" colloquium in March 2022, this collection of articles represents an independent and meticulously scrutinised body of work. While inspired by the colloquium's overarching theme, each contribution has undergone a rigorous, blind peer review process, ensuring scholarly rigor and individual merit. The colloquium served as a catalyst for exploring unchartered territories in language and law research, emphasising the global South's unique perspective enriched by multilingualism and multiculturalism. In the complex tapestry of human society, the dynamic interplay between language and the legal domain emerges as a dynamic and evolving field demanding scholarly exploration and understanding.
{"title":"Editorial: Language and Law","authors":"Natasha Ravyse, Michael Laubscher","doi":"10.17159/1727-3781/2024/v27i0a17366","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17366","url":null,"abstract":"Initiated against the backdrop of the NWU Faculty of Law's inaugural \"Justice in Practice\" colloquium in March 2022, this collection of articles represents an independent and meticulously scrutinised body of work. While inspired by the colloquium's overarching theme, each contribution has undergone a rigorous, blind peer review process, ensuring scholarly rigor and individual merit. The colloquium served as a catalyst for exploring unchartered territories in language and law research, emphasising the global South's unique perspective enriched by multilingualism and multiculturalism. In the complex tapestry of human society, the dynamic interplay between language and the legal domain emerges as a dynamic and evolving field demanding scholarly exploration and understanding.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140414947","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 : 2024-02-29DOI: 10.17159/1727-3781/2023/v26i0a15074
Neels Kilian
This article analyses the importance of the solvency capital requirement (hereafter SCR) and the minimum capital requirement (hereafter MCR) formulae and why an insurer's external auditor should audit these and disclose its contents in the insurer's financial statements. When calculating the SCR, the reason for requiring such a disclosure is to allow the Prudential Authority an opportunity to understand whether the assumptions, parameters and techniques (also referred to as economic considerations) applied by actuaries comply with section 36 of the Insurance Act 18 of 2017. Administrative costs and written premiums are considered when calculating the MCR, although written premiums could be subjected to different interpretations, which might affect this formula. Accordingly, had Constantia Insurance Company Limited's auditor audited these formulae in 2018 and disclosed their contents in the financial statements, the Prudential Authority would have commenced liquidation procedures in 2019, not choosing instead to wait and monitor the company's solvency requirements on a weekly basis for four years. As a result, owing to the lack of transparency in the financial statements and non-compliance with the SCR and MCR, Constantia spent nearly R733 000 000 over the three-year period to fund its business activities.
{"title":"Can Language Prevent Flexible SCR Calculations? New Duties for Auditors in The Prudential Authority v Constantia Insurance Company Limited, Gauteng Local Division, Johannesburg, Case Number 2022-19765","authors":"Neels Kilian","doi":"10.17159/1727-3781/2023/v26i0a15074","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15074","url":null,"abstract":"This article analyses the importance of the solvency capital requirement (hereafter SCR) and the minimum capital requirement (hereafter MCR) formulae and why an insurer's external auditor should audit these and disclose its contents in the insurer's financial statements. When calculating the SCR, the reason for requiring such a disclosure is to allow the Prudential Authority an opportunity to understand whether the assumptions, parameters and techniques (also referred to as economic considerations) applied by actuaries comply with section 36 of the Insurance Act 18 of 2017. Administrative costs and written premiums are considered when calculating the MCR, although written premiums could be subjected to different interpretations, which might affect this formula. Accordingly, had Constantia Insurance Company Limited's auditor audited these formulae in 2018 and disclosed their contents in the financial statements, the Prudential Authority would have commenced liquidation procedures in 2019, not choosing instead to wait and monitor the company's solvency requirements on a weekly basis for four years. As a result, owing to the lack of transparency in the financial statements and non-compliance with the SCR and MCR, Constantia spent nearly R733 000 000 over the three-year period to fund its business activities.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140414382","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 : 2024-02-29DOI: 10.17159/1727-3781/2023/v26i0a14692
Z. Docrat
This article utilises both the theoretical and practical lenses located in the discipline of forensic linguistics to examine the practice of administering language tests to applicants for citizenship in South Africa, considering the prevailing policies and practices in an international context, and concludes that they should be avoided. In this interdisciplinary article I outline the South African constitutional and legislative provisions affecting language testing and language proficiency when applying for citizenship in multilingual South Africa. In this paper I discuss the linkages between language, citizenship, and xenophobia, building on the work by Brits, Kaschula and Docrat on the role of language in xenophobic attacks and protests. I argue that language tests for immigrants in the South African context perpetuate Apartheid-era thinking, policies and practices. This creates linguistic inequality and contributes to racial tensions and divisions in communities rather than creating social cohesion and equality for all. The article provides a case study of Operation Dudula, where language is being used to carry out xenophobic acts under the banner of citizenship. A brief comparison is drawn with Ryanair airlines' language tests for South African citizens.
{"title":"The Discriminatory Practice of Language Testing for Authenticating Citizenship: An Analysis of Operation Dudula Through a Forensic Linguistics Lens","authors":"Z. Docrat","doi":"10.17159/1727-3781/2023/v26i0a14692","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14692","url":null,"abstract":"This article utilises both the theoretical and practical lenses located in the discipline of forensic linguistics to examine the practice of administering language tests to applicants for citizenship in South Africa, considering the prevailing policies and practices in an international context, and concludes that they should be avoided. In this interdisciplinary article I outline the South African constitutional and legislative provisions affecting language testing and language proficiency when applying for citizenship in multilingual South Africa. In this paper I discuss the linkages between language, citizenship, and xenophobia, building on the work by Brits, Kaschula and Docrat on the role of language in xenophobic attacks and protests. I argue that language tests for immigrants in the South African context perpetuate Apartheid-era thinking, policies and practices. This creates linguistic inequality and contributes to racial tensions and divisions in communities rather than creating social cohesion and equality for all. The article provides a case study of Operation Dudula, where language is being used to carry out xenophobic acts under the banner of citizenship. A brief comparison is drawn with Ryanair airlines' language tests for South African citizens.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"14 9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140414829","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 : 2024-02-29DOI: 10.17159/1727-3781/2024/v27i0a16931
Michael Laubscher
This contribution provides a review of the publication: “Linguistics for Legal interpretation” written by Prof TR Carney
这篇论文对该出版物进行了评论：TR Carney 教授撰写的 "法律解释语言学 "一文
{"title":"Book Review: Linguistics for Legal Interpretation Terrence R Carney (UJ Press Auckland Park 2023)","authors":"Michael Laubscher","doi":"10.17159/1727-3781/2024/v27i0a16931","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16931","url":null,"abstract":"This contribution provides a review of the publication: “Linguistics for Legal interpretation” written by Prof TR Carney","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"608 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140416917","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 : 2024-02-29DOI: 10.17159/1727-3781/2023/v26i0a15552
Avitus A Agbor
The role of language in a diverse and democratic society is critical for many reasons: first, it serves as a vital tool for the realisation of the right to freedom of expression. Secondly, it brings into confluence two other rights: the rights to dignity and equality. When language has the potential to cause hurt or harm, or incite others towards hatred, discrimination, or violence, then law as an instrument must be relied upon to regulate it. Political rhetoric uttered by top politicians in South Africa does not reflect the truth from a policy perspective; it incites hatred towards foreign nationals, shatters communities as fear and suspicion fill individuals who target foreign nationals and is counterproductive when one thinks of nation-building. The rhetoric exceeds the limits of legally protected speech. In addition, scapegoating foreign nationals for the country's socio-economic woes is not only dishonest but is a form of political corruption.
{"title":"Language as a Tool of Divisive Politics: Perspectives on Foreign Nationals in South Africa","authors":"Avitus A Agbor","doi":"10.17159/1727-3781/2023/v26i0a15552","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15552","url":null,"abstract":"The role of language in a diverse and democratic society is critical for many reasons: first, it serves as a vital tool for the realisation of the right to freedom of expression. Secondly, it brings into confluence two other rights: the rights to dignity and equality. When language has the potential to cause hurt or harm, or incite others towards hatred, discrimination, or violence, then law as an instrument must be relied upon to regulate it. Political rhetoric uttered by top politicians in South Africa does not reflect the truth from a policy perspective; it incites hatred towards foreign nationals, shatters communities as fear and suspicion fill individuals who target foreign nationals and is counterproductive when one thinks of nation-building. The rhetoric exceeds the limits of legally protected speech. In addition, scapegoating foreign nationals for the country's socio-economic woes is not only dishonest but is a form of political corruption.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"2003 17","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140416488","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 : 2024-02-29DOI: 10.17159/1727-3781/2023/v26i0a15334
K. Beiter
The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.
{"title":"Translating Educational and Cultural Literacy Works under Berne, Ius Cogens, and Linguistic Genocide","authors":"K. Beiter","doi":"10.17159/1727-3781/2023/v26i0a15334","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15334","url":null,"abstract":"The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"45 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140414716","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 : 2024-02-19DOI: 10.17159/1727-3781/2024/v27i0a15810
M. Forere
This work is centred on the judgment of the Constitutional Court in Blind SA v The Minister of Trade (CCT 320/21) [2022] ZACC 33 (21 September 2022), and the issues raised by this judgement. The main concern for this contribution is the overreliance on a non-ratified treaty – the Marrakesh Treaty –, which calls for the assessment of the place of international law in South Africa. The paper finds that while the issues raised in the Blind SA case – the rights of people with disability – are legitimate, the manner in which they were raised went beyond the prescripts of the Constitution.
{"title":"The Ramifications of International Law in South Africa: Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022)","authors":"M. Forere","doi":"10.17159/1727-3781/2024/v27i0a15810","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15810","url":null,"abstract":"This work is centred on the judgment of the Constitutional Court in Blind SA v The Minister of Trade (CCT 320/21) [2022] ZACC 33 (21 September 2022), and the issues raised by this judgement. The main concern for this contribution is the overreliance on a non-ratified treaty – the Marrakesh Treaty –, which calls for the assessment of the place of international law in South Africa. The paper finds that while the issues raised in the Blind SA case – the rights of people with disability – are legitimate, the manner in which they were raised went beyond the prescripts of the Constitution.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"23 11","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140450134","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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