Pub Date : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a15778
A. Diala, Nejat Hussein
South Africa's research incentive system rewards faculty members and affiliates for publishing in outlets that are "accredited" by the Department of Higher Education and Training. This arguably perverse incentive makes academic research a potentially aggressive numbers game. It is compounded by factors such as undue delay in peer review, difficulty in securing expert evaluators, and poor understanding of who constitutes a "peer". Despite the "publish or perish" pressure on researchers and the prohibition of the parallel submission of manuscripts by many journals, there is negligible research on publishing problems in South African journals. Informed by a literature survey, editorial experience and conversations with colleagues, this article seeks a dialogue about these problems, which it characterises as a tsetse fly perched on the scrotum. On the one hand, the current incentive system commodifies outputs and diverts attention from building knowledge with socially responsive research to building the financial coffers of universities and authors. On the other hand, inappropriate editorial interpretations of a "peer" and the gratis nature of peer evaluation encumber the publishing process. We argue that this situation erodes academic excellence, encourages the growth of predatory journals, and potentially harms national development.
{"title":"The Tsetse Fly Perched on the Scrotum: Publishing Problems in Academic Journals","authors":"A. Diala, Nejat Hussein","doi":"10.17159/1727-3781/2023/v26i0a15778","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15778","url":null,"abstract":"South Africa's research incentive system rewards faculty members and affiliates for publishing in outlets that are \"accredited\" by the Department of Higher Education and Training. This arguably perverse incentive makes academic research a potentially aggressive numbers game. It is compounded by factors such as undue delay in peer review, difficulty in securing expert evaluators, and poor understanding of who constitutes a \"peer\". Despite the \"publish or perish\" pressure on researchers and the prohibition of the parallel submission of manuscripts by many journals, there is negligible research on publishing problems in South African journals. Informed by a literature survey, editorial experience and conversations with colleagues, this article seeks a dialogue about these problems, which it characterises as a tsetse fly perched on the scrotum. On the one hand, the current incentive system commodifies outputs and diverts attention from building knowledge with socially responsive research to building the financial coffers of universities and authors. On the other hand, inappropriate editorial interpretations of a \"peer\" and the gratis nature of peer evaluation encumber the publishing process. We argue that this situation erodes academic excellence, encourages the growth of predatory journals, and potentially harms national development.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"41 41","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245515","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a15901
Andre Mukheibir
Section 38 of the Constitution of the Republic of South Africa, 1996 provides for appropriate relief where a right in the Bill of Rights has been infringed. In Fose v Minister of Safety and Security 1997 3 SA 786 (CC) the Constitutional Court raised the question of "appropriate relief" with reference to section 7(4)(a) of the Constitution of the Republic of South Africa Act 200 of 1993. In the Fose case the plaintiff claimed "punitive constitutional damages" together with delictual damages. While the court did not rule out an award for damages for the infringement, it did not award constitutional damages in that instance, specifically because the plaintiff claimed "punitive constitutional damages". The Fose case has been followed by most of the cases heard in the years after Fose was decided. In most instances where constitutional damages were claimed the courts, following Fose, have not awarded constitutional damages where delictual damages were available. The rules relating to constitutional damages are casuistic and it is submitted that the principle of subsidiarity could form a foundational principle to solve the problem of casuistry in this regard.
{"title":"Constitutional Damages – a Stagnant or a Changing Landscape?","authors":"Andre Mukheibir","doi":"10.17159/1727-3781/2023/v26i0a15901","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15901","url":null,"abstract":"Section 38 of the Constitution of the Republic of South Africa, 1996 provides for appropriate relief where a right in the Bill of Rights has been infringed. In Fose v Minister of Safety and Security 1997 3 SA 786 (CC) the Constitutional Court raised the question of \"appropriate relief\" with reference to section 7(4)(a) of the Constitution of the Republic of South Africa Act 200 of 1993. In the Fose case the plaintiff claimed \"punitive constitutional damages\" together with delictual damages. While the court did not rule out an award for damages for the infringement, it did not award constitutional damages in that instance, specifically because the plaintiff claimed \"punitive constitutional damages\". The Fose case has been followed by most of the cases heard in the years after Fose was decided. In most instances where constitutional damages were claimed the courts, following Fose, have not awarded constitutional damages where delictual damages were available. The rules relating to constitutional damages are casuistic and it is submitted that the principle of subsidiarity could form a foundational principle to solve the problem of casuistry in this regard.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"114 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242424","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a17143
Peter Kantor
This case note analyses an appeal decision (Khoin v Jenkins in Re: Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust [2023] 1 All SA 110 (WCC)) handed down in 2022 by the Western Cape High Court, its purpose being to identify the strengths and weaknesses of the decision and to comment on possible future developments. The text of the judgment is interpreted in the light of judicial precedent, literature and domestic (South African) and international law. One of the key findings is that "intangible heritage" is an integral part of both domestic and international law, and the Khoin-case gives judicial recognition to the concept as a part of South African heritage law. One of the main criticisms levelled against the judgment is that it does not adhere to judicial precedent in failing to find that the right to consultation of First Nations Peoples before administrative action is taken that allegedly violates their constitutional rights to intangible heritage is sufficient to satisfy the test for the existence of a prima facie right for the purposes of obtaining an interim interdict.
本案例说明分析了西开普省高等法院于 2022 年作出的一项上诉判决（Khoin 诉 Jenkins in Re：Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust [2023] 1 All SA 110 (WCC)），其目的是找出判决的优缺点，并对未来可能的发展进行评论。判决文本根据司法先例、文献以及国内法（南非）和国际法进行了解释。主要结论之一是，"非物质遗产 "是国内法和国际法的组成部分，Khoin 案使这一概念作为南非遗产法的一部分得到司法承认。对该判决提出的主要批评之一是，它没有遵守司法先例，没有认定原住民在采取行政行 动据称侵犯其非物质遗产的宪法权利之前进行磋商的权利足以满足为获得临时禁令的目 的而存在表面证据确凿的权利的检验标准。
{"title":"Hands off our Intangible Cultural Heritage - Khoin v Jenkins in re: Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust","authors":"Peter Kantor","doi":"10.17159/1727-3781/2023/v26i0a17143","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17143","url":null,"abstract":"This case note analyses an appeal decision (Khoin v Jenkins in Re: Observatory Civic Association v Trustees for the Time Being of the Liesbeek Leisure Properties Trust [2023] 1 All SA 110 (WCC)) handed down in 2022 by the Western Cape High Court, its purpose being to identify the strengths and weaknesses of the decision and to comment on possible future developments. The text of the judgment is interpreted in the light of judicial precedent, literature and domestic (South African) and international law. One of the key findings is that \"intangible heritage\" is an integral part of both domestic and international law, and the Khoin-case gives judicial recognition to the concept as a part of South African heritage law. One of the main criticisms levelled against the judgment is that it does not adhere to judicial precedent in failing to find that the right to consultation of First Nations Peoples before administrative action is taken that allegedly violates their constitutional rights to intangible heritage is sufficient to satisfy the test for the existence of a prima facie right for the purposes of obtaining an interim interdict.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"102 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243442","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a15647
Robbie Robinson
In this contribution Chief Justice Coke's character and contribution to the development of the English law are considered. More specifically the focus falls on his profound knowledge of the Common Law and the concomitant emphasizing of human freedom. Coke's emphasizing of the Common Law was the cause of continuous conflict between himself and King James 1 and later also King Charles 1. True to the Royal approach in this era they strongly endorsed Royal absolutism, believing it stemmed from a divine origin. James 1 enjoyed the support of Sir Francis Bacon. Also between him and Coke intense rivalry, also of a personal nature, existed. Against James 1 and Bacon's continuing attacks on his views, Coke could only turn to the common law.
这篇论文探讨了首席大法官科克的性格以及他对英国法律发展的贡献。更具体地说，重点在于他对普通法的深刻理解以及随之而来的对人类自由的强调。科克对普通法的强调是他与国王詹姆斯一世（King James 1）以及后来的国王查尔斯一世（King Charles 1）之间冲突不断的原因。在这个时代，他们忠实于王室的做法，坚决支持王室专制主义，认为它源于神圣的起源。詹姆斯一世得到了弗朗西斯-培根爵士的支持。他与科克之间也存在着激烈的个人竞争。面对詹姆斯一世和培根对他观点的不断攻击，科克只能求助于普通法。
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Pub Date : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a17331
Nicou Olivier
Laudatio dedicated to Willemien du Plessis.
献给 Willemien du Plessis 的 Laudatio。
{"title":"Laudatio opgedra aan Willemien du Plessis","authors":"Nicou Olivier","doi":"10.17159/1727-3781/2023/v26i0a17331","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17331","url":null,"abstract":"Laudatio dedicated to Willemien du Plessis.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245755","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a16463
Warren Freedman
One of the most significant consequences of the global climate crisis is that the rate at which sea levels are rising has accelerated over the past 100 years and will continue to do so for the next century. The accelerated rise in the global mean sea level will inevitably affect the rights and interests of the owners and occupiers of coastal land, especially of coastal land that is bounded by the high-water mark (agri non limitati). This is because changes in the location of the high-water mark brought about by rising sea levels will result either in the acquisition of coastal property where the high-water mark moves seaward or in the loss of coastal property where the high-water mark moves landward. The law relating to the loss or acquisition of coastal property as a result of changes in the location of the high-water mark may be traced back to the common law principles governing the acquisition of ownership by alluvion (alluvio) and the loss of ownership by erosion. As part of an attempt to address the consequences of sea level rise, section 14(5) of the National Environmental: Integrated Coastal Management Act 24 of 2008 has amended some of these common law principles. The purpose of this article is to set out and critically analyse the provisions of section 14(5).
{"title":"Rising Tides: The Acquisition of Ownership by Alluvio in the Context of Sea Level Rise","authors":"Warren Freedman","doi":"10.17159/1727-3781/2023/v26i0a16463","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16463","url":null,"abstract":"One of the most significant consequences of the global climate crisis is that the rate at which sea levels are rising has accelerated over the past 100 years and will continue to do so for the next century. The accelerated rise in the global mean sea level will inevitably affect the rights and interests of the owners and occupiers of coastal land, especially of coastal land that is bounded by the high-water mark (agri non limitati). This is because changes in the location of the high-water mark brought about by rising sea levels will result either in the acquisition of coastal property where the high-water mark moves seaward or in the loss of coastal property where the high-water mark moves landward. The law relating to the loss or acquisition of coastal property as a result of changes in the location of the high-water mark may be traced back to the common law principles governing the acquisition of ownership by alluvion (alluvio) and the loss of ownership by erosion. As part of an attempt to address the consequences of sea level rise, section 14(5) of the National Environmental: Integrated Coastal Management Act 24 of 2008 has amended some of these common law principles. The purpose of this article is to set out and critically analyse the provisions of section 14(5).","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"43 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243206","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a15664
Andrea Bauling
Digital literacy development must be regarded equally essential as the development of other literacies and critical thinking skills in Bachelor of Laws students. Because law teachers do not include visuals in learning materials, law students do not develop the skills to effectively interpret them. Digital visual literacy (DVL) is one of the core digital literacies law teachers can advance in their students to prepare them for our visually-driven world. Legal historical course material is the perfect vessel for visual learning materials in law, as these can effectively communicate the spacio-temporal aspects of legal history and legal historical development. A recent empirical study of the views of South African students of legal history indicated their positive sentiments toward a wide variety of visual learning materials and the inclusion of instructor-generated summary infographics in online learning materials. They were also in favour of the inclusion of descriptive visuals like timeline infographics containing additional visual elements in legal historical course content. The study also indicated that reading and interpreting infographics aid the development of DVL skills, and the more infographics students interact with, the better they become at interpreting them. Since the instructor-generated summary infographic can be designed to communicate information about a specific module, it is suited to teaching any legal content. Visual learning artefacts can be created and sourced in numerous ways, but the process can be time-consuming. Sharing these amongst colleagues and institutions as open educational resources (OER) will ultimately aid a collective project aimed at the development of the DVL skills of South African law students. The article provides examples of instructor-generated summary infographics based on legal historical course content, distributed as freely available OER.
{"title":"Legal History as the Perfect Vessel: Teaching with Infographics for the Development of Digital Visual Literacy Skills in Law Students","authors":"Andrea Bauling","doi":"10.17159/1727-3781/2023/v26i0a15664","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15664","url":null,"abstract":"Digital literacy development must be regarded equally essential as the development of other literacies and critical thinking skills in Bachelor of Laws students. Because law teachers do not include visuals in learning materials, law students do not develop the skills to effectively interpret them. Digital visual literacy (DVL) is one of the core digital literacies law teachers can advance in their students to prepare them for our visually-driven world. Legal historical course material is the perfect vessel for visual learning materials in law, as these can effectively communicate the spacio-temporal aspects of legal history and legal historical development. A recent empirical study of the views of South African students of legal history indicated their positive sentiments toward a wide variety of visual learning materials and the inclusion of instructor-generated summary infographics in online learning materials. They were also in favour of the inclusion of descriptive visuals like timeline infographics containing additional visual elements in legal historical course content. The study also indicated that reading and interpreting infographics aid the development of DVL skills, and the more infographics students interact with, the better they become at interpreting them. Since the instructor-generated summary infographic can be designed to communicate information about a specific module, it is suited to teaching any legal content. Visual learning artefacts can be created and sourced in numerous ways, but the process can be time-consuming. Sharing these amongst colleagues and institutions as open educational resources (OER) will ultimately aid a collective project aimed at the development of the DVL skills of South African law students. The article provides examples of instructor-generated summary infographics based on legal historical course content, distributed as freely available OER.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"269 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243263","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a13321
S. Van Wyk
This article provides insights into the legal and social contexts surrounding inheritance divisions in both Old Babylonian and South African cultures. It proposes an innovative approach to the division of inheritance in South Africa that is in line with the country's constitutional values and diverse cultural heritage. In order to compare the inheritance divisions, the study identifies the shared characteristics between Old Babylonian and South African practices. These inheritance divisions often involve disagreements and complexities among heirs, which may result in negotiations and the reorganisation of inheritances through mechanisms like sale, donation or exchange. By highlighting these commonalities the article sheds light on the differences and similarities in the legal and social contexts in which these divisions occur. While the South African approach has been influenced by Roman-Dutch legal scholars, incorporating the adaptable legal practices of the Old Babylonian tradition could introduce further innovation and adaptability to the South African inheritance division process
{"title":"Innovative Approaches to the Division of an Inheritance in a Deceased Estate: Lessons from the Babylonians 2000-1600 BCE","authors":"S. Van Wyk","doi":"10.17159/1727-3781/2023/v26i0a13321","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a13321","url":null,"abstract":"This article provides insights into the legal and social contexts surrounding inheritance divisions in both Old Babylonian and South African cultures. It proposes an innovative approach to the division of inheritance in South Africa that is in line with the country's constitutional values and diverse cultural heritage. In order to compare the inheritance divisions, the study identifies the shared characteristics between Old Babylonian and South African practices. These inheritance divisions often involve disagreements and complexities among heirs, which may result in negotiations and the reorganisation of inheritances through mechanisms like sale, donation or exchange. By highlighting these commonalities the article sheds light on the differences and similarities in the legal and social contexts in which these divisions occur. While the South African approach has been influenced by Roman-Dutch legal scholars, incorporating the adaptable legal practices of the Old Babylonian tradition could introduce further innovation and adaptability to the South African inheritance division process","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"69 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244035","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 : 2023-11-23DOI: 10.17159/1727-3781/2023/v26i0a16378
Michael Faure
In this contribution to honour Willemien du Plessis we use the economic approach to law to explain how environmental law affects economic development and vice-versa. The contribution starts by presenting the Environmental Kuznets Curve that makes clear that environmental regulation should not retard economic development but that, on the contrary, environmental protection and economic growth can go hand-in-hand, provided there is environmental regulation. The contribution further discusses the idea of competition between legal orders and how this affects environmental law, and to this end both the race to the bottom as well as the race-to-the-top are discussed. Finally, attention is paid to the role of environmental law in economic development.
{"title":"The Impact of Environmental Regulation on the Investment Climate","authors":"Michael Faure","doi":"10.17159/1727-3781/2023/v26i0a16378","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16378","url":null,"abstract":"In this contribution to honour Willemien du Plessis we use the economic approach to law to explain how environmental law affects economic development and vice-versa. The contribution starts by presenting the Environmental Kuznets Curve that makes clear that environmental regulation should not retard economic development but that, on the contrary, environmental protection and economic growth can go hand-in-hand, provided there is environmental regulation. The contribution further discusses the idea of competition between legal orders and how this affects environmental law, and to this end both the race to the bottom as well as the race-to-the-top are discussed. Finally, attention is paid to the role of environmental law in economic development.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245987","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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