Scielo RSS <![CDATA[Potchefstroom Electronic Law Journal (PELJ)]]> http://www.scielo.org.za/rss.php?pid=1727-378120220001&lang=es vol. 25 num. 1 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Lessons from UNCITRAL for Reforming the South African Legal Framework Concerning Security Rights in Movable Property</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100001&lng=es&nrm=iso&tlng=es This article analyses the South African legal framework governing security rights in movable property with a view to inspire law reform. The analysis is based on a comparison of the current South African framework with the UNCITRAL Legislative Guide on Secured Transactions, a soft-law instrument containing international best practice. The problematic aspects of the South African framework benchmarked against the UNCITRAL Guide are: (1) not having a common legal framework that applies equally to all types of (including quasi-) real security transactions; (2) the scope of the current framework not being comprehensive (inclusive) enough; (3) not having an efficient enough method of creating the security right; (4) the current publicity method, particularly concerning special notarial bonds, being overly cumbersome and not providing effective public notice to third parties; and (5) the current enforcement measures potentially not being the most efficient. Finally, regarding each of these problem areas, the article makes proposals on how the South African legislature could reform the current framework into one that is legally efficient and in step with international best practice. <![CDATA[<b>A Reply to Camilla Pickles' "Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100002&lng=es&nrm=iso&tlng=es Camilla Pickles' Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests (Pregnancy Law) aims at providing a less adversarial angle related to the pregnant woman and the unborn within her by moving away from viewing the pregnant woman as a single entity (including the unborn within her) as well as from viewing the pregnant woman and the unborn within her as two separate entities of distinctive value and with separate needs. This applies to four categories addressed by Pregnancy Law, namely foetal personhood, violence against pregnant women that terminates pregnancies, substance abuse during pregnancy, and the termination of pregnancy especially in the South African context. Pregnancy Law positions its argument on a relational model that emphasises the context of pregnancy as signifying a connection between the pregnant woman (with rights) and the unborn (with interests) inside her, the unborn being entirely dependent on the pregnant woman's body. This, in turn, is blended with what is referred to as a not-one/not-two approach. Bearing this in mind, Pregnancy Law claims to provide a compromise, a middle ground and a third approach regarding what is perceived to be the extremes of the single-entity and separate-entities approaches. Bearing this in mind, this article critically appraises Pregnancy Law's claims as alluded to above with a specific focus on the status of the unborn against the background of abortion (which in turn has implications for matters related to foetal personhood, violence against pregnant women that terminates pregnancies, and substance abuse during pregnancy). <![CDATA[<b>The Appraisal Right in terms of Section 164 of the <i>Companies Act </i>71 of 2008: An Overview</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100003&lng=es&nrm=iso&tlng=es The appraisal right in terms of section 164 of the Companies Act 71 of 2008 has been applicable to fundamental transactions undertaken by companies for a number of years. The first two aims of this article are first to provide an overview of the appraisal right, and second to revisit certain concerns that were raised about the determination of fair value by the courts where a shareholder makes an application to court for a determination of fair value. It is suggested that this should not present a major problem in practice, considering that existing practice in takeover laws requires the valuation of shares by an independent expert when a company undertakes an affected transaction. In the main, the requirements for fundamental transactions overlap with those for affected transactions. The requirements for affected transactions adequately deal with the determination of fair value. The third aim is to provide an overview of how companies attempt to limit the effect of the appraisal right on fundamental transactions using various terms and conditions precedents, and the fourth is to discuss developments in case law on the appraisal right remedy. It is concluded that the decisions of the courts on its application will assist companies in structuring fundamental transactions and shareholders in exercising the appraisal right. Finally, the article suggests reasons for including certain subsections in the appraisal right remedy, for instance, the power of the courts to award costs in certain respects and a requirement that extends the time periods within which a shareholder may make a demand where the company fails to comply with specific requirements. It is suggested that this enhances the ability of shareholders to exercise the appraisal right. The article also provides concluding remarks advising companies and shareholders. In the case of companies, it concludes, for instance, that due diligence in identifying the risk that certain shareholders may raise appraisal rights is required before initiating a transaction that may be subject to appraisal rights. Failure to do so may be costly to the company. And, in the case of shareholders, failure to adhere to the required procedures may result in loss of their appraisal right remedy, or loss of the right to approach the courts for an appropriate relief under the appraisal right remedy. <![CDATA[<b>Language Discrimination in the Context of South African Workplace Discrimination Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100004&lng=es&nrm=iso&tlng=es This contribution considers the role of language as a prohibited ground of unfair discrimination in the workplace in South Africa, an area of law that has been somewhat neglected in the literature to date. It starts by setting out the constitutional and legislative framework for the protection of language rights and the prohibition of unfair discrimination based on language as a listed ground. With a brief comparative reference to other prominent jurisdictions, it then explains the potential ways in which an employer may unfairly discriminate against employees based on language, following which it considers the potential grounds for the justification of language-based discrimination in the workplace. After consideration of the sparse case law on the topic in South Africa, it highlights a few specific issues regarding language and workplace discrimination, before concluding with some thoughts on potential future developments. <![CDATA[<b>The application of the Occupational Health Act and Safety and Other Safety Measures at Schools' Technology Workshops</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100005&lng=es&nrm=iso&tlng=es Empirical research conducted by education researchers over a period of approximately 20 years confirms that uncertainty exists whether the provisions of the Occupational Health and Safety Act (OHSA) apply to technology workshops at academic, technical and special schools; whether compliance with the safety provisions of the OHSA is lacking; and whether serious injuries at technology workshops at schools occur from time to time. A comparative study of foreign law regarding occupational safety at technology workshops at high schools confirms that many countries have national or federal occupational safety and health statutes that apply to workplaces as well as public schools, although some have specific statutes or regulations addressing occupational safety at public schools. Countries like Germany, the Netherlands and some states of the United States of America define school-going children and students as "workers" in terms of their occupational safety legislation. Germany includes all school-going children in its statutory accident insurance scheme to provide for faultless compensation in case of injury. In determining whether the OHSA applies to technical workshops at high schools, the fundamental rights, as well as its spirit and purport, must be considered through the prism of the Constitution of the Republic of South Africa. Applying the traditional literalist-cum-intentionalist approach to the interpretation of the OHSA, the conclusion is that this Act does indeed apply to technology workshops at schools. In terms of section 60(1)(a) of the South African Schools Act state liability for damages occurring as a result of school activities does provide essential legal protection. However, the South African Schools Act, school safety policies and school infrastructure regulations do not make explicit provision for the application of health and safety standards at school premises that use potentially dangerous machinery and equipment in places such as technical workshops and science laboratories. It is therefore recommended that the OHSA, the Compensation for Occupational Injuries and Diseases Act, the Schools Act and the School Infrastructure Regulations be amended to provide legal certainty in respect of the application of occupational safety to technical workshops at high schools. <![CDATA[<b>Uncertainty About the Condonation of Formally Non-Compliant Wills, and the Rectification of Cross-Signed Mirror Wills: Is an Act-Based Model the Solution?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100006&lng=es&nrm=iso&tlng=es A recent contribution proposed a processual act-based approach to conceptualising wills in South African law. This approach regards a will as the product of a will-making process in which various parties perform specific acts with specific associated forms of intention in order to establish a will. The act-based model also paves the way for the introduction of an intent doctrine in South African law. This article tests the functioning of the proposed act-based model by applying it to two scenarios: the condonation of formally non-compliant wills in terms of section 2(3) of the Wills Act and the rectification of cross-signed mirror wills in terms of the common law. Both scenarios continue to be plagued by uncertainty as a direct consequence of the lack of a proper definition, explanation and contextualisation of testator's intention in South African law. Regarding condonation, it is found that, because the courts are often left guessing or speculating as to testator's intention, they inevitably overemphasise other aspects such as the form of the document to establish intention for the purposes of condonation in terms of section 2(3). An act-based model could ensure that the decision to condone or not to condone relies solely on whether the document embodies the act of testation. If the act of testation is found to be present (no matter in which shape or form, or by whom it was drafted), the document embodying such an act should be condoned. In terms of rectification, in turn, the act-based model highlights the important distinction between content and formality - the act of testation as opposed to compliance with the statutory formality requirements through the execution of a will. It appears that rectification is appropriate only where an error has caused a discrepancy between the testator's true intention and the intention as expressed in the act of testation contained in the will. Rectification seems less appropriate when dealing with cross-signed wills, which are the result of a flawed execution process. Instead, condonation is much better suited for correcting the formal non-compliance of cross-signed wills. <![CDATA[<b>Prosecuting Human Violations Committed in the Anglophone Cameroon Crisis: A Disquisition on the Legal Framework</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100007&lng=es&nrm=iso&tlng=es The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's "democracies" which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis. <![CDATA[<b>The <i>Protection of Personal Information Act </i>4 of 2013 in the Context of Health Research: Enabler of Privacy Rights or Roadblock?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100008&lng=es&nrm=iso&tlng=es Data is an exceptionally valuable asset - it is a fundamental part of the information age and is widely regarded as the world's most valuable resource. A key issue that has caused some debate in South Africa in recent times relates to the Protection of Personal Information Act 4 of 2013 (POPIA), and whether the Act requires broad or specific consent in the context of health research. The primary purpose of this article will be to answer the following question: does POPIA require broad or specific consent from persons who take part in health research? In a health research context, POPIA must be considered together with, inter alia, the National Health Act 61 of 2003 (NHA), and the Health Professions Act 56 of 1974 (HPA). As a point of departure, in terms of the NHA, health research requires the informed consent of participants. Informed consent has been a part of South African law for almost one hundred years, and gives effect to an individual's dignity and autonomy. The NHA does not directly distinguish between types of consent, but the Department of Health's second edition of Ethics in Health Research: Principles, Processes and Structures (the DoH Ethical Guidelines) does. The practice of broad consent is not only endorsed by the DoH Ethical Guidelines but encouraged. However, unlike the medical-legal framework, POPIA - which should be referred to as the privacy framework, or "privacy layer" in relation to data compliance in health research - requires consent to be specific as well as informed. If one considers the applicable sections of POPIA, and South Africa's interpretive tools and jurisprudence, it is apparent that consent in health research should as a matter of best practice be specific. <![CDATA[<b>The Right to Electricity in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100009&lng=es&nrm=iso&tlng=es In this note, we examine access to electricity as a right in South African law. We also consider whether deprivations, interferences and disruptions of electricity supply are justifiable limitations of the right. While recent court decisions view access to electricity as a supplement to the Bill of Rights, judicial treatment of electricity as a right precedes the Constitution of the Republic of South Africa, 1996. Prior to the adoption of the Constitution, the courts treated access to electricity as a common law right in the context of servitudes and personal and contractual rights. Under the Constitution, the right to access to electricity flows from the constitutional and statutory obligations of Eskom, South Africa's power utility, to provide reliable electricity supply and to ensure just administrative action when taking actions that result in the deprivation of electricity. From a Bill of Rights perspective, the cases show that the right to electricity, albeit not expressed in the text of the Constitution, is a condition for the exercise of other rights, including the rights to human dignity and access to adequate housing, water and health care. We conclude that the deprivation of electricity through loadshedding and other interruptions by Eskom, landlords and body corporates are violations of the right to access to electricity. These violations could be remedied through spoliation and constitutional remedies. <![CDATA[<b>Debunking the Master of the High Court's Assumed Approval Authority Over a Redistribution Agreement in a Deceased Estate</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100010&lng=es&nrm=iso&tlng=es A redistribution agreement is one of the available methods to assist the executor in winding up a deceased estate. It may be used to overcome impractical situations and/or statutory limitations that might occur during the estate administration process. The heirs and legatees and, in some instances, a surviving spouse may then agree to the reshuffling of their inheritance awards. The Chief Registrar of Deeds issued a directive that places a burden on the Master of the High Court in approving the "acceptance" of the agreement as part of the registration application for the transfer of immovable inheritance property. This was in response to a legal opinion from the office of the Chief State Law Advisor, incorporated in a 2010 internal Master's directive on instruction of the Chief Master. It directed that a redistribution agreement is deemed enforceable only after the Master "duly examined and approved" its legality. However, the Master's practice of approving a redistribution agreement is not a rule of law and cannot supersede the provisions of a statute. This article investigates whether the Master, as a "creature of statute", is acting within the parameters of its statutory administrative acts and functions involving a redistribution agreement. <![CDATA[<b>The Constitutionality of the National Health Insurance Bill: The Treatment of Asylum Seekers</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100011&lng=es&nrm=iso&tlng=es As the supreme law of the land, the Constitution of the Republic of South Africa, 1996 (the Constitution) requires that any law or conduct be consistent with its provisions. The Draft National Health Insurance Bill, 2019 (the Bill) is no exception. Clause 4 of the Bill states that South African citizens, permanent residents and refugees will have access to quality health care services whilst asylum seekers and undocumented migrants will have access to emergency medical services, as well as services for notifiable conditions of public health concern. The treatment of asylum seekers is concerning given the fact that asylum seekers are a vulnerable group which enjoys special status under international law. This article seeks to assess the constitutionality of clause 4 of the Bill in so far as it limits the access to health care services for asylum seekers. The objective is to ascertain the extent to which the differential treatment of asylum seekers is permissible. Clause 4 of the Bill will be benchmarked against sections 9 and 27 of the Constitution and international law. <![CDATA[<b>The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 120(a) of the Constitution</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100012&lng=es&nrm=iso&tlng=es Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline. <![CDATA[<b>First Do No Harm: Legal Principles Regulating the Future of Artificial Intelligence in Health Care in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100013&lng=es&nrm=iso&tlng=es What sets AI systems and AI-powered medical robots apart from all other forms of advanced medical technology is their ability to operate at least to some degree autonomously from the human health care practitioner and to use machine-learning to generate new, often unforeseen, analysis and predictions. This poses challenges under the current framework of laws, regulations, and ethical guidelines applicable to health care in South Africa. The article outlines these challenges and sets out guiding principles for a normative framework to regulate the use of AI in health care. The article examines three key areas for legal reform in relation to AI in health care. First, it proposes that the regulatory framework for the oversight of software as a medical device needs to be updated to develop frameworks for adequately regulating the use of such new technologies. Secondly, it argues that the present HPCSA guidelines for health care practitioners in South Africa adopt an unduly restrictive approach centred in the outmoded semantics of telemedicine. This may discourage technological innovation that could improve access to health care for all, and as such the guidelines are inconsistent with the national digital health strategy. Thirdly, it examines the common law principles of fault-based liability for medical negligence, which could prove inadequate to provide patients and users of new technologies with redress for harm where fault cannot clearly be attributed to the healthcare practitioner. It argues that consideration should be given to developing a statutory scheme for strict liability, together with mandatory insurance, and appropriate reform of product liability pertaining to technology developers and manufacturers. These legal reforms should not be undertaken without also developing a coherent, human-rights centred policy framework for the ethical use of AI, robotics, and related technologies in health care in South Africa. <![CDATA[<b>Corporate Power, Human Rights and Urban Governance in South African Cities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100014&lng=es&nrm=iso&tlng=es This article is concerned with the extent to which corporations involved in governing South African cities and towns are bound to the developmental objectives and socio-economic rights that urban governance efforts are constitutionally required to pursue. It considers the constitutional powers of local government over such non-state actors, evaluates their co-option and accountability in terms of local government legislation and discusses the evolution of their residual "horizontal" constitutional responsibilities. <![CDATA[<b><i>King v De Jager</i></b>: <b>Implications for Religion-Based Discrimination in Wills</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812022000100015&lng=es&nrm=iso&tlng=es In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the gender-discriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding gender-discriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC.