Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120170001&lang=en vol. 20 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Competing Preferent Community Prospecting Rights: A Nonchalant Custodian?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100001&lng=en&nrm=iso&tlng=en Traditional communities that were precluded from the benefits and financial rewards of exploitation of the mineral resources of South Africa are afforded the opportunity to lodge an application with the Department of Mineral Resources (hereafter the department) to obtain a so-called preferent prospecting right (or mining right) in respect of land which is registered - or to be registered - in their name. An applicant on behalf of the community has to meet the requirements of section 104(2) of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). This in line with one of the objectives of the MPRDA of expanding the opportunities for historically disadvantaged persons, such as traditional communities, to enter into, and actively participate in, the mineral industry and to benefit from the exploitation of the nation's mineral resources (s 2(d)). The Minister of Mineral Resources ((hereafter the minister), in his/her capacity as the custodian of the mineral resources of South Africa on behalf of the people of South Africa (s 3(1)), is, amongst others, by implication tasked with achieving, these objectives. The same applies to the department and its officials. However, this was unfortunately not the experience of a traditional community, the Bengwenyama-Ya-Maswazi community (hereafter the BYM community), who had to battle through two rounds of litigation with the minister, the department and persons and entities which promoted their own interests whilst attempting to convey the (false) impression that they were representing the community. The subject of this discussion is the second round of litigation between the Bengwenyama-Ya-Maswazi Tribal Council and Genorah. The second round of litigation involved competing applications for preferent community prospecting rights in two related appeals heard together by the Supreme Court of Appeal (hereafter the SCA). The first appeal concerned preferent community prospecting rights on the farm Nooitverwacht (hereafter the Nooitverwacht appeal) and the second appeal involved preferent community prospecting rights on the farm Eerstegeluk (hereafter the Eerstegeluk appeal). The focus of the discussion is on the Nooitverwacht appeal, and references (where appropriate) will be made to the Eerstegeluk appeal. A number of related issues are also discussed - these include the distinction between prospecting rights and preferent community prospecting rights; the meaning of "... land which is registered or to be registered in the name of the community concerned" (with reference to restitution land, redistribution land, and community land acquired from own resources); and the changing legal landscape relating to community decision-making and consultation. <![CDATA[<b>The Legal Nature of the Duty of Care and Skill: Contract or Delict?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100002&lng=en&nrm=iso&tlng=en This article evaluates the legal nature of the duty of care and skill of directors. In terms of the Companies Act 71 of 2008 this duty is essentially delictual in nature. This article evaluates whether the duty is in fact delictual in nature. Case law, which considered the duty of care and skill and where it had been sought to establish liability for directors, has in fact mainly been in respect of non-executive directors. A clearer distinction should therefore be drawn between executive and nonexecutive directors whose duties would be more of a contractual nature. The article then evaluates whether the legal nature of the duty of care and skill would lead to any practical difference depending on the cause of action. <![CDATA[<b>The Exclusion of Liability for Emotional Harm to Passengers in the Warsaw and Montréal Convention: Moving Away from Floyd, Siddhu and Pienaar to the <em>Stott</em> Case?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100003&lng=en&nrm=iso&tlng=en This contribution focuses on the transport of passengers on international routes and the legal regime set down by the Warsaw Convention of 1929 and reinforced by the Montréal Convention of 1999. These Conventions regulate commercial aviation by detailing a set of minimum standardised procedures for flight safety, such as standards for air navigation systems, amongst others, to ensure safe and efficient air travel. The legal regime also regulates the possible claims that may be made against airlines for the death of or harm to passengers, as well as relating to damage to and loss of baggage. The regime not only limits claims temporally and by location, but it also excludes the application of national legal regimes. With regard to claims of harm to dignity the regime disallows such claims to be brought within the restrictions placed by the legal regimes or on any other basis. The contribution does not address the full coverage of these Conventions, only the exclusion of mental / emotional injuries. The Convention excludes emotional harm from the definition of death and physical harm. However claimants have brought claims to undermine the main exclusion of claims with regard to compensation for emotional harm. This contribution explores the exclusion of claims in the Warsaw and Montréal Conventions and thereafter analyses two court decisions in common law countries where this exclusion of claims was challenged and the challenge failed. <![CDATA[<b>Rights, Regulation and Bureaucratic Impact: The Impact of Human Rights Litigation on the Regulation of Informal Trade in Johannesburg</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100004&lng=en&nrm=iso&tlng=en In contemplating the extent to which rights-based litigation is conducive to positive social change, attention ought to be paid to the bureaucratic impact of court judgments that vindicate rights against the State. As a case study of such impact, this article considers the effects of human rights litigation on the regulation of informal trade in the City of Johannesburg, where a 2013 attempt by local government to clamp down on informal trade in the central business district (CBD) led to high-profile court action. After describing and problematising the City's general approach to managing informal trade, the article focuses on "Operation Clean Sweep", which aimed to rid much of the CBD of informal traders and became the focal point of rights-based resistance. It then briefly describes the constitutional and jurisprudential framework within which the legal challenge to "Operation Clean Sweep" was to be decided, before critically discussing the judgment of the Constitutional Court in South African Informal Traders Forum v City of Johannesburg 2014 4 SA 371 (CC), which effectively halted "Operation Clean Sweep" by interdicting the City from removing traders from their places of business. The article then proceeds to consider the aftermath of the judgment, and assesses its impact on the City's informal trade policy and urban management practices, as well as on the broader regulatory and political environment around street trade in South African cities. The article shows that the bureaucratic impact of the judgment has, at best, been mixed, and that the judgment has not been entirely successful in disrupting the legal and bureaucratic mindsets, frameworks and processes that simultaneously create, exacerbate and unsuccessfully attempt to address the "unmanageability" of street trade in Johannesburg. <![CDATA[<b><em>Kerkhoff v Minister of Justice and Constitutionai Development</em> 2011 2 SACR109 (GNP): Intermediary Appointment Reports and a Child's Right to Privacy Versus the Right of an Accused to Access to Information</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100005&lng=en&nrm=iso&tlng=en General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>The Search for Environmental Justice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100006&lng=en&nrm=iso&tlng=en General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>Editorial 2017 (20) Special Edition: Water Security</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100007&lng=en&nrm=iso&tlng=en General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>Water Security and International Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100008&lng=en&nrm=iso&tlng=en The article explores water security from an international law point of view. The article argues that in order to better understand water security it is important to focus on the function of international water law. Even though water security is a relatively recent concept it was latent in the process of the evolution of international water law. In addition, the article examines the relationship between man and water from the point of view of water security. The article seeks to answer the question: how does international water law deal with that relationship? Is water only an object to be utilised and protected or has the relationship become more complex and ambivalent through the occurrence of various extreme events. Furthermore, the article places the concept of water security into a historiographical and substantive context. It explores three broad approaches by international law to water issues: general international law, the regulatory approach and the management approach. The article argues that they are all relevant to water security. Finally, the article seeks to demonstrate that even though water security has emerged as a new notion, this does not mean that international law does not include rules and principles relevant for water security. Indeed, many general principles of international law are applicable in the context of water security. In addition, specific regulations dealing with water quantity and quality issues have been developed in international environmental law, although they are not necessarily labelled as water security rules. Moreover, various risk management methods have been elaborated to deal with water-related disasters and crises. Reciprocally, water security arguments are not necessarily new notions but rather reflect already existing concepts and principles. <![CDATA[<b>Water Security and Climate Change: The Need for Adaptive Governance</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100009&lng=en&nrm=iso&tlng=en Climate change will bring about unprecedented economic, social and environmental effects, which require both the mitigation of greenhouse gas emissions and adaptation to its adverse effects. Water is the main element through which the impacts of climate change will be felt. Climate change results in increased uncertainties, complexities, stress and potential for conflicts within water management, both among and within states. New forms of governance are needed if the world is to respond to the need to adapt to changes in freshwater supply and to manage water security risks. This paper suggests that adaptive governance should to be main-streamed into all water regulation to ensure the availability of and access to safe water resources and to prevent water-related conflicts. The paper discusses the concept of water security in the context of climate change, the threats that climate change poses to water security, and the concept and implications of adaptive governance as a possible solution. The application of adaptive governance requires a certain degree of institutional and normative flexibility, instruments and institutions that can respond and adapt to changes and manage the level of uncertainty associated with the impacts of climate change. The governance institutions, methods and instruments should be responsive to new information and different kinds of uncertainties, while reflecting the vulnerabilities, capacities, needs and priorities of both societies and ecosystems in the face of climate change. Water security risks could be reduced by increased hydrosolidarity among states, which would present the challenges posed by climate change on water governance and security as primarily an opportunity for new forms of cooperation. <![CDATA[<b>Water Security and Judicial and Administrative Confusion in South Africa: <em>The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 ν</em><em> MEC for the Department of Water Affairs, Gauteng</em> 2015 ZAGPPHC 211(17 April 2015)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100010&lng=en&nrm=iso&tlng=en One of the gravest constraints which South Africa faces in its efforts to promote development and to lift much of its population out of poverty is the relative scarcity of its water. Significant changes were made to South Africa's water law in the 1990s, especially with the promulgation of the National Water Act 36 of 1998. In terms of this Act a Water Tribunal was created which ought to have enhanced water security and to have provided a settled forum to adjudicate disputes and to assist in developing the jurisprudence of water law. Instead the Tribunal appears to have created almost as much confusion as clarity before it was dissolved in much uncertainty over whether it would continue in existence or not. A recent judgment in the Gauteng High Court (Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 v MEC for the Department of Water Affairs, Gauteng) has created uncertainty by departing from the precedent of a relatively recent judgment in the North Gauteng High Court (Escarpment Environment Protection Group and Wonderfontein Community Association v Department of Water Affairs and Xstrata Alloys (Pty) Ltd and The Water Tribunal). In the context of the uncertainty created by the falling into desuetude, at least between 2011 and 2016, of the Water Tribunal, and contradictory indications from National Government, litigants have been forced to seek other fora for remedies. On occasion, courts have been sympathetic and given sensitive judgments -on occasion they have not. Against this background of inconsistent jurisprudence, it is important that there be greater clarity of rights, duties and institutions, and that institutions become settled as soon as possible so that a consistent jurisprudence can begin to emerge in the water rights field. While the situation stabilises, which it is hoped that it will soon begin to do, it is suggested that both courts and government act with circumspection in considering applications concerning water use rights; and be sensitive of the current uncertain circumstances when making decisions. The difficulties of ensuring water security and administrative fairness in South Africa demand nothing less. <![CDATA[<b>Water Security and the Right to Water in Southern Africa: An Overview</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100011&lng=en&nrm=iso&tlng=en The Southern African region's water-related problems are quite diverse. From the struggles of indigenous communities in Botswana to the cholera outbreaks in Zimbabwe; from the difficulties of poor communities in accessing basic water services to the disputes between municipal councils and individual well-to-do water users, it is abundantly evident that water security is a goal/vision that needs to be pursued by governments. Yet, much of the holistic scholarly focus on water security within the region has been on transboundary water management, to the exclusion of local/national water constitutional frameworks. Through four cases from Botswana, South Africa, Zambia and Zimbabwe the paper addresses selected aspects of the varied water issues, in particular the constitutional right to water and how that impacts on water security within the region. The literature and case law reviewed in the paper indicate that while there are benefits to constitutionalising the right to water as a fundamental right, courts are still able to read the right to water into existing rights, especially the right to life. However, reading in has its own limitations, including that courts sometimes leave hanging/unpronounced government duties/responsibilities where the right to water is not provided for. Accordingly, the paper attempts to show that while the right to water could be read into other existing rights like the right to life, water security could be better achieved through an independent constitutional human right to water, which creates constitutional duties on the state. <![CDATA[<b>Regulating Against Business "Fronting" to Advance Black Economic Empowerment in Zimbabwe: Lessons from South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100012&lng=en&nrm=iso&tlng=en This article examines Zimbabwe's indigenisation legislation, points out some of its inadequacies and draws lessons from South Africa's experiences in implementing its own indigenisation legislation. Both countries have encountered challenges relating to an upsurge in unethical business conduct aimed at defeating the objectives of their black economic empowerment programmes, policies and legislation. This practice is called business fronting. However, while South Africa has succeeded in enacting a credible piece of legislation aimed at addressing this issue, Zimbabwe has yet to do so. The article points out that the failure to specifically regulate against business fronting poses the most significant threat to the attainment of the laudable aims and objectives of the indigenisation programme and related legislation. In order to avoid becoming a regulatory regime that is notorious not only for being functionally ineffective but also for tacitly permitting racketeering in reality, the article argues for the adoption of anti-fronting legislation in Zimbabwe using the South African legislation as a model. <![CDATA[<b><em>Lodhi 5 Properties Investments CC </em></b><em><b>ν</b><b> FirstRand Bank</b></em><b> Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100013&lng=en&nrm=iso&tlng=en On 22 May 2015, the Supreme Court of Appeal (SCA) handed down a judgment in the matter of Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on a loan in terms of Islamic law (Sharia law) may be a defence for a claim for mora interest in terms of a loan agreement. This note critically discusses the judgment in the light of the approach adopted by the SCA with regard to addressing a dispute arising from a contract that has Islamic law as a governing law. As this is the first case to come before the SCA in South Africa, this note critically analyses how the court discussed the principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court's assertion that a claim for mora interest has nothing to do with and is not affected by the Sharia law's prohibition against payment of interest on a loan debt. It also looks at the SCA's approach (as a common law court) with regard to the enforcement of the principles of Islamic banking law. The judgment raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion in the context of the continuing growth and expansion of Islamic banking and finance law in South Africa. <![CDATA[<em><b>A Liberal Actor in a Reaiist World the European Union Regulatory State and the Global Political Economy of Energy</b></em>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100014&lng=en&nrm=iso&tlng=en This contribution reviews the book entitled "A Liberal Actor in a Realist World The European Union Regulatory State and the Global Political Economy of Energy" authored by Andreas Goldthau and Nick Sitter. It was published by Routledge in 2015. <![CDATA[<b>The Experience of Face Veil Wearers in Europe and the Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100015&lng=en&nrm=iso&tlng=en This contribution reviews the book entitled "A Liberal Actor in a Realist World The European Union Regulatory State and the Global Political Economy of Energy" authored by Andreas Goldthau and Nick Sitter. It was published by Routledge in 2015. <![CDATA[<em><b>Responsible Mining: Key Principles for Industry Integrity</b></em>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100016&lng=en&nrm=iso&tlng=en This contribution reviews the book entitled "Responsible Mining: Key Principles for Industry Integrity" authored by Sara Bice and published by Routledge in 2016. <![CDATA[<b>A Pluralist Approach to the Law of International Sales</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100017&lng=en&nrm=iso&tlng=en International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to the existence of differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because there are gaps in the CISG the Swiss government has made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of resistance are setting in against further harmonisation. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union. Rumour has it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis. <![CDATA[<b>The myth of objectivity: implicit racial bias and the law (Part 1)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100018&lng=en&nrm=iso&tlng=en The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa - similar to the US - continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias. <![CDATA[<b>The myth of objectivity: implicit racial bias and the law (Part 2)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100019&lng=en&nrm=iso&tlng=en The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa - similar to the US - continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, racecontingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias. <![CDATA[<b>Employees as commissioning parents in surrogacy matters: the birth of new leave requirements in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100020&lng=en&nrm=iso&tlng=en Lasgewende ouers ingevolge n surrogasie ooreenkoms beskik oor dieselfde ouerlike verpligtinge as tradisionele ouers teenoor hulle kind. Alhoewel dit waar is, word sedert die statutêre erkenning van surrogasie in die Kinderwet 38 van 2005 nog geen geskikte ouerskapverlof vir hierdie persone gebied om aan sodanige ouerlike verpligtinge te voldoen nie. Die enigste verlof tans tot lasgewende ouers se beskikking is drie dae gesinsverantwoordelikheidsverlof ingevolge artikel 27 van die Wet op Basiese Diensvoorwaardes 75 van 1997 (WBDV). Dit word aan die hand gedoen dat hierdie verlof onvoldoende is. In MIA v State Information Technology Agency 2015 36 ILJ 1905 (LC) het die Arbeidshof aangetoon dat wysigings in hierdie verband aan die arbeidswetgewing noodsaaklik is ten einde die betrokke leemte aan te spreek. Die Labour Laws Amendment Bill van 2015 het sedertdien relevante wysigings aan verlof tot die WBDV voorgestel. Terwyl die vermelde wysigings verwelkom word, is die periodes en die bestuur van die verskillende tipes voorgestelde verlof kommerwekkend en behoort dit aangespreek te word. Die resente regsontwikkeling in die Verenigde Koninkryk op hierdie gebied kan as n waardevolle vergelykende maatstaf dien ten einde riglyne vir die verbetering van bogenoemde konsepwet te bied. Sodoende kan ook die Suid-Afrikaanse reg die belange van die partye tot n surrogaatooreenkoms, insluitende die van die kind daaruit gebore, na behore beskerm.<hr/>Commissioning parents, in terms of a surrogacy agreement, have the same parental obligations towards their child as traditional parents. Yet, despite the legitimising of surrogacy in the Children's Act 38 of 2005, no provision has been made for suitable parental leave to be granted to these persons so that they may fulfil their parental obligations. The only leave that is currently available to commissioning parents is three days family responsibility leave in terms of section 27 of the Basic Conditions of Employment Act 75 of 1997 (BCEA). It is submitted that this leave is insufficient. In MIA v State Information Technology Agency 2015 36 ILJ 1905 (LC), the Labour Court indicated that amendments to labour legislation are necessary to address the lacuna in this respect. The Labour Laws Amendment Bill of 2015 has since proposed relevant amendments to such leave in terms of the BCEA. While the amendments are welcomed, the proposed period and management of the different types of leave give rise to concern and should be addressed. The latest developments in the United Kingdom in the field of parental leave make it a worthy comparator to provide guidelines for the improvement of the abovementioned Bill. In so doing, South African law can also sufficiently protect the interests of the parties to a surrogacy agreement, including the child born in terms thereof. <![CDATA[<b>Post-Commencement finance - Domiciled resident or uneasy foreign transplant?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100021&lng=en&nrm=iso&tlng=en The 2008 Companies Act 71 of 2008 introduced a new business rescue regime into South African company law, bringing it into line with trends in developed countries, particularly the United States. Indeed, it appears that the United States Chapter 11 model was followed in this process, introducing the business rescue concept as a legal transplant. Corporate law is well suited to legislative borrowing, but there are important caveats to bear in mind when doing so. In particular: the context and legal culture of the country of origin may differ from those of the destination country. South Africa's commercial environment is different from that of the United States, problematising a transplant of Chapter 11's concepts. Post-commencement finance will be used as a micro-study of this broader phenomenon, and this topic will be investigated with comparative reference to the position in the United States. It will be argued that an essential difference between the two procedures is the lack of legislatively mandated court oversight in South Africa. This impacts on the interests of creditors, as well as on the availability of fresh finance. This results in problems in the implementation of the post-commencement finance provisions, which threaten the viability of this particular legal transplant. <![CDATA[<b>Children's rights to mother-tongue education in a multilingual world: a comparative analysis between South Africa and Germany</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100022&lng=en&nrm=iso&tlng=en The importance of the mother tongue, and, more specifically, of mother-tongue education, is recognised globally. Use of the mother tongue is regarded as one of the most effective ways of acting and performing cognitively, socially and communally. The aim of this article is to encourage and promote the implementation and realisation of mother-tongue education through certain school/education models in order to achieve equality and liberation and to increase the incidence of highperformance education systems in a multilingual world. A comparative analysis of South Africa and Germany will also be undertaken with regard to language policies and the mother-tongue education situation in these countries' school systems. Several other aspects such as the choice of language as a fundamental right, the importance of international instruments, as well as some lessons to be learnt for both South Africa and Germany in respect of mother-tongue education, will be discussed. It will be concluded that, despite the existence of a multilingual world, the crucial importance of the use of the mother tongue and mother-tongue education should not be underestimated and/or ignored. <![CDATA[<b>Assisted reproductive technologies and the right to reproduce under South African law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100023&lng=en&nrm=iso&tlng=en Reproductive rights in South Africa have traditionally focused on the rights of individuals to avoid reproduction. However, with an increase in the use of assisted reproductive technologies (ART), there has been a shift in the focus on reproductive rights from the rights of individuals to avoid reproduction to the rights of individuals to reproduce noncoitally. With the emergence of new technologies, reproduction by noncoital means and the right to engage in these new technologies is becoming more prevalent. This raises two questions. The first question is whether such a right exists. The recent Constitutional Court decision in AB v Minister of Social Development 2017 3 BCLR 267 (CC) suggests that it does, but only if the person claiming this right is physically involved in the reproductive process. Ostensibly this excludes those who cannot contribute to the reproduction of a child. The second question raised pertains to the impact of this right on specific forms of ART, namely mitochondrial transfer, posthumous reproduction and embryo donation. While the first two forms of ART would meet the criteria set down in AB, embryo donation would not. Individuals denied access to embryo donation could thus not rely on either the right to reproductive autonomy or the right to privacy to aid them. Fortunately the existing legal framework provides some assistance to these individuals, although sadly the same legislative framework does not support the use of mitochondrial transfer and posthumous reproduction. In this respect there is incongruence between rights and legislation, which has only been exacerbated by the recent Constitutional Court decision. What is thus needed is clarity on the meaning of certain rights in respect of certain forms of ART as well as legislative reform to reflect the clarified position. <![CDATA[<b>Balancing Responsibilities - Financial Literacy</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100024&lng=en&nrm=iso&tlng=en In Australia there is an obligation to promote the informed participation of financial consumers while in South Africa there is an obligation to educate consumers. The Australian obligation is concerned with the financial system as a whole while the South African obligation has generally been focused on general financial education as a tool to promote financial inclusion. There is no obligation for consumers to attain a minimum standard of literacy in credit or finance generally. Financial literacy is one among a number of strategies directed towards inducing changes in consumer behaviour. It sits between the old regulatory model which relies on disclosure of information for effective and rational decision-making and a newer regulatory model which takes into account individuals' perceptions and behavioural biases and may seek to accommodate for these by imposing obligations on financial services providers beyond the mere disclosure of information. Financial literacy is generally the ability to understand how money works, how a person can earn money or make it more. It specifically refers to the set of skills and knowledge that allows people to make informed and effective decisions with all of their financial resources. This article discusses Australian and South African legal obligations and social responsibilities aimed at promoting the financial literacy of consumers. <![CDATA[<b>Prosecuting the offence of misappropriation of public funds: An insight into Cameroon's Special Criminal Court</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100025&lng=en&nrm=iso&tlng=en The fight against the misappropriation of public funds perpetrated by individuals, especially public servants, for private gain, enjoys different degrees of commitment by different countries. The enactment of laws and establishment of institutional mechanisms towards this end are partly a reflection of the attainment of such a mission and can also be the measure by which such a commitment can be assessed. Rated as one of the most corrupt countries in Africa by Transparency International, the global anti-corruption watchdog, the Republic of Cameroon recently enacted a law that created a Special Criminal Court. This comes as one of the most robust and significant legislative developments in the fight against the misappropriation of public funds. The mandate of the Special Criminal Court is to bring to justice persons who "cause loss of at least 50.000.000 CFA Francs (equivalent to about USD 100.000) relating to misappropriation of public funds and other related offences provided for in the Cameroon Penal Code and International Conventions ratified by Cameroon". This paper examines the offence of the misappropriation of public funds. It looks at aspects of the Special Criminal Court as provided by the Law that established it as well as supplementary legislation enacted to address specific issues related to the Special Criminal Court. The paper also examines the offence for which individuals are prosecuted in the Special Criminal Court. As a bold step in fighting and defeating the "invisible enemy amongst us" (that is, corruption), this paper argues that an institutional mechanism like the Special Criminal Court that has docked several top-notch politicians and former cabinet members for trial, is an example to emulate and confirms that corruption can be fought if and only if the political will to do so is present. <![CDATA[<b>The law regarding pension interest in South Africa has been settled! Or has it? With reference to <i>Ndaba v Ndaba </i>(600/2015) [2016] ZASCA 162</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100026&lng=en&nrm=iso&tlng=en This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba (600/2015) [2016] ZASCA 162 adequately clarified how this area of law should be understood. In the light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are addressed. The paper also addresses aspects of this area of law which the Supreme Court of Appeal had not settled and which could potentially be subject to future litigation. The paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. <![CDATA[<b>Climate justice: case studies in global and regional governance challenges (Environmental Law Institute Washington DC 2016)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100027&lng=en&nrm=iso&tlng=en Climate Justice: Case Studies in Global and Regional Governance Challenges edited by Randall S Abate, addresses a diverse set of topics related to climate justice, explores the meaning and challenges of this critical issue, and provides factual and legal arguments to explain why fairness should guide the creation of international and national climate-related policy and responses. <![CDATA[<b>Gyorfi T <em>Against the New Constitutionalism</em></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100028&lng=en&nrm=iso&tlng=en Climate Justice: Case Studies in Global and Regional Governance Challenges edited by Randall S Abate, addresses a diverse set of topics related to climate justice, explores the meaning and challenges of this critical issue, and provides factual and legal arguments to explain why fairness should guide the creation of international and national climate-related policy and responses. <![CDATA[<b>Towards a Sound Pedagogy in Law: A Constitutionally Informed Dissertation as Capstone Course in the LLB Degree Programme</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100029&lng=en&nrm=iso&tlng=en The Bachelor of Laws (LLB) degree programme should adequately prepare graduates for the demands set by both legal practice and the greater South African society. Law schools are not tasked with producing future legal practitioners, but rather critical thinkers who can engage with the relationship between law and society in a meaningful way, and who recognise their duty to uphold the values of the Constitution of the Republic of South Africa, 1996 when performing their professional duties. Resultantly law teachers should construct learning environments that engage students in ways that help them develop creativity; embedded subject knowledge; and autonomous learning, critical thinking, and lifelong learning skills. A well-structured LLB degree programme should focus on this broader conception of legal education and a dissertation module as capstone course should be closely aligned with this objective. A greater academic influence could result in an academically rigorous degree programme that produces more mature graduates who possess competencies and attributes that exceed that which is demanded of them by legal practice. One way to establish a greater academic influence in a degree programme would be to include a final year dissertation module which demands that students illustrate the ability to think critically. The final year of a degree programme should provide the student with several opportunities aimed at culminating the learning experience and consolidating the skills and knowledge acquired throughout the preceding years of study. Capstone courses facilitate in-depth learning and should be employed to teach crucial skills related to the purpose of the degree. A compulsory dissertation module as capstone course, which embodies the pedagogical approach of transformative legal education, should be included in the revised curriculum of all law schools in South Africa. This dissertation module should demand that students engage critically with the principles of transformative constitutionalism in order to facilitate thinking that goes beyond traditional and conservative constructions of the South African legal system and its purpose. Such a dissertation could develop a student's metacognitive ability and result in the development of new legal skills, and the sharpening of existing skills. When producing a dissertation a student is learning to write as well as writing to learn. Crucially, the process of disserting also requires legal research skills and the ability to formulate effective research strategies. A law student who is capable of utilising various sources of law, synthesising the information found therein and presenting it effectively is illustrating elements of authentic learning. But this form of authentic learning in will be near impossible to achieve without the active guidance of a willing supervisor. Law teachers perpetuate legal culture and the supervisor-student relationship creates the opportunity to sculpt the culture instilled so that it may have the desired impact on the student. The supervisor could advance this process by empowering the student to construct critical and transformative views of South African law. A dissertation module presented in this manner could produce students who are able to engage with law constructively and who will graduate as responsible citizens and aspiring legal professionals who are excited about inspiring social justice and transformation in their communities. <![CDATA[<b>Selected Developments in South African Labour Legislation related to Persons with Disabilities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100030&lng=en&nrm=iso&tlng=en In South Africa marginalised groups have historically been afforded legislative protection in order to ensure that the rights of these groups are respected, protected, promoted and fulfilled. Examples of two such groups are older persons, whose rights are provided for in terms of the Older Persons Act 13 of 2006 and children, whose rights are provided for in terms of the Children's Act 38 of 2005. Persons with disabilities have, however, not yet been the subject of dedicated legislation outlining the content of the rights to which they are entitled. As a result of this lack of dedicated legislation, the rights of persons with disabilities are dealt with in a piecemeal fashion, often in disparate pieces of legislation. In addition to this focus on the rights of persons with disabilities, South African labour law has recently undergone extensive amendments. These amendments have led to the rights of persons with disabilities in the workplace being affected substantially. Since these amendments are as yet untested, little scrutiny of these provisions and the effect they may have on persons with disabilities has been undertaken. This article will thus discuss selected amendments of the labour legislation, and interrogate the practical effect these amendments may have on the rights of such persons. Of particular importance for the purposes of this article is the updating of an existing institution known as Sheltered Employment Factories, as well as the introduction of harsher penalties for employers who remain non-compliant with certain provisions of the Employment Equity Act 55 of 1998. <![CDATA[<b>The Public Protector as a Mechanism of Political Accountability: The Extent of its Contribution to the Realisation of the Right to Access Adequate Housing in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100031&lng=en&nrm=iso&tlng=en This paper is premised on the concept of political accountability which aims to hold accountable government for its action and or omission. Political accountability encompasses a number of mechanisms such as the judiciary and the ombudsman. Courts have been instrumental in enforcing the realisation of the right to access to adequate housing in South Africa. This paper argues, however, that the judiciary is not the only enforcing avenue because other mechanisms of political accountability may also contribute to the realisation of the right to housing. The paper, therefore, explores the extent of the Public Protector's contribution to the realisation of the right to access to adequate housing. The paper then argues that it is through its functions that the Public Protector exercises its accounting role in the realisation of the right to access to adequate housing. The paper, however, cautions that the Public Protector is not an alternative dispute resolution institution parallel to courts. But that the Public Protector complements the role played by courts by offering another medium through which such right may be realised. <![CDATA[<b>Using the Law to Combat Public Procurement Corruption in South Africa: Lessons from Hong Kong</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100032&lng=en&nrm=iso&tlng=en Since South Africa's political transition in 1994, corruption has been a major feature of the country's politics. However, the complexity of post-apartheid South African politics has sometimes prevented allegations and suspicions of corruption from being adequately dealt with by the law. This article examines the legal framework used to combat public procurement corruption in South Africa. Using a comparative approach, the article also examines the legal framework of Hong Kong - with a view to identifying lessons that South Africa can learn therefrom. Such lessons include but are not limited to Hong Kong's specific laws dedicated to public procurement, its particular legislative and institutional features, its commendable constitutional commitment to eradicating corruption, and the fact that Hong Kong's rules pertaining to procurement processes are more consistent and are not hidden in several legislative prescripts. South Africa may also do well to learn from the successes of Hong Kong's iconic anti-corruption agency, the Independent Commission against Corruption (ICAC) - in attempting to model its own anti-corruption agency. <![CDATA[<b>A General Legislative Analysis of "Torture" as a Human Rights Violation in Zimbabwe</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100033&lng=en&nrm=iso&tlng=en Several challenges involving torture-related human rights violations have been reported in Zimbabwe from the late 1970s to date. Notably, these torture-related human rights violations were problematic during the liberation war era in Zimbabwe. Regrettably, such violations are allegedly still prevalent, especially prior to and/or during general political elections in Zimbabwe. Accordingly, this article investigates torture as a human rights violation in Zimbabwe, inter alia by focusing on the role of selected law enforcement agencies in the protection of human rights in Zimbabwe. The article also discusses the legal position on torture and the perpetration of torture against ordinary people prior to as well as after independence in Zimbabwe. This is done to investigate the adequacy of the legal framework in Zimbabwe with regard to the combatting of torture. In relation to this, selected regional and international legal frameworks against torture are briefly discussed in order to determine possible measures that could be utilised in Zimbabwe. The authors submit that although the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (Zimbabwe Constitution, 2013) prohibits torture, more may still need to be done to enhance the combatting of torture in Zimbabwe. For instance, apart from the prohibition contained in the Zimbabwe Constitution, 2013, there is no legislation that expressly outlaws torture in Zimbabwe. Moreover, Zimbabwe has not ratified the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (UN Convention against Torture) to date. Lastly, concluding remarks and possible recommendations that could be employed to discourage torture-related human rights abuses in Zimbabwe are provided. <![CDATA[<b>The Relationship between Restraints of Trade and Garden Leave</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100034&lng=en&nrm=iso&tlng=en The purpose of the article is to examine the relationship between a so-called "garden leave" clause and a post-termination restraint of trade clause in employment contracts, in view of the decision in Vodacom (Pty) Ltd v Motsa 2016 3 SA 116 (LC). The Labour Court grappled with the question of whether the enforcement of the garden leave provision impacts on the enforcement of a post-termination restraint of trade clause. Enforcement of both these types of clauses may be problematic. It can result in unfairness if an employee ends up being commercially inactive for a long period. The author argues that garden leave has a direct effect on the enforcement of a post-termination restraint of trade clause. Accordingly, a restraint of trade will be enforced only if the employer's proprietary interest requires additional protection beyond what is achieved under the garden leave clause. <![CDATA[<b>The Effect of Changing Public Policy on the Automatic Termination of Fixed-Term Employment Contracts in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100035&lng=en&nrm=iso&tlng=en A fixed-term contract terminates automatically by expiry after a particular period, upon completion of a project, or the occurrence of an event. The use of conditional employment arrangements is accepted as a commercial reality. Awareness of the potential for the abuse of "automatic termination" clauses in employment contracts as a mechanism for termination is increasing. Recent case law on the issue indicates that public policy, which serves as the test for the validity and/or enforceability of "automatic termination" clauses, has changed. The impetus for the protection of "non-standard" or atypical employees is underscored by policy considerations that have been incorporated by the recent legislative amendments. These developments may very well place a heavier evidentiary burden than before on employers who opt to rely on "automatic termination" clauses to sustain an argument in favour of their validity and/or enforcement.