Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120200001&lang=es vol. 23 num. 1 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Improving Access to Justice through Law Graduate Post-Study Community Service in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100001&lng=es&nrm=iso&tlng=es Access to justice for all in South Africa, as most clearly set out in sections 34 and 35 of the Constitution of the Republic of South Africa, 1996, is necessary to realise various other fundamental rights and to improve living standards. There are insufficient free legal services available to the indigent in South Africa, especially in civil matters, thereby often making meaningful access to justice unattainable. This study considers possible approaches, challenges and opportunities for law graduate community service in South Africa (hereinafter "community service") to expand the ambit and impact of free legal services to the indigent. This would promote the constitutional imperative of access to justice, focussing on civil matters. This study concentrates on the access to justice potential of and challenges to such community service. Such challenges will be shown to include its proper utilisation and control through the adequate supervision of graduates. This paper argues that graduate community service has the capacity to promote better access to justice and hence that steps should be taken for its introduction in some form. Community service and means for law graduates to perform this as a necessary part of vocational training before entering the legal profession are provided for in section 29 of the Legal Practice Act 28 of 2014 (LPA). But despite parts of the Act being operative, community service is neither in operation nor do regulations yet exist for its implementation. The specific vocational training element(s) for law graduates is worthy of separate study and is not the focus of this paper. Such a separate study would include opportunity creation - such as gaining the necessary practical experience and the establishment of employment opportunities - and training challenges for graduates during community service. In the pre-LPA era it would have been necessary to focus more on whether community service for law graduates should be included in legislation or not as part of graduates' vocational training and as a key component of free legal service delivery. Some such arguments are alluded to as community service has yet to be implemented and its implementation is not a fait accompli. But because it is now included in the LPA as a legal aid service delivery possibility, this study instead focusses on the need for the effective and appropriate implementation and operation of community service to turn the requirements and encouraging promise of the LPA on community service into reality. The paper explores issues such as the necessary and appropriate supervision and placement of law graduates completing community service. The research very briefly touches on whether community service would best be compulsory for graduates as part of their vocational training or merely one possible route towards admission to the legal profession. Lessons are sought for legal community service in South Africa from existing medical post-study community service schemes as to the role which such schemes have played in expanded service provision and impediments experienced in reaching such goals. These lessons are applied to proposals for the implementation and operation of law graduate community service. This study considers how community service could and should be a key component of a multi-faceted and co-ordinated approach to expand and improve free legal services for the indigent in civil matters in South Africa with its gross inequality, unemployment and poverty. For this goal to be realised, there must be mechanisms for its effective roll-out and operation. <![CDATA[<b>Promoting Constitutional Democracy: Regulating Political Parties in the Central African Republic and Senegal</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100002&lng=es&nrm=iso&tlng=es Constitutions and other legal frameworks are expected to ensure the protection of the fundamental and collective rights of citizens. In this respect, the regulation of political parties is a global phenomenon, which symbolises multi-party democracy, the rule of law and good governance. This article examines the phenomenon of the constitutional and legal regulation of political parties in the Central African Republic (hereafter CAR) and Senegal, two francophone countries with different trajectories and experiences of multi-party democracy. It identifies possible challenges and shortcomings of the regulation of political parties in the two countries, especially in relation to the actual implementation of the existing national frameworks. The article attempts to suggest possible frameworks for an effective implementation of the constitutional and legal rights of political parties, including the constitutionalisation of the enforcement mechanisms, which would undeniably protect the position of political parties in constitutional democracies. In conclusion, the article highlights the role of an independent judiciary in the promotion and protection of the constitutional and legal status of all political parties in the CAR and Senegal. <![CDATA[<b>The Marketing of Consumer and Mortgage Credit as a Responsible Lending Tool: A Comparison of South African, European and Belgian Law: Part 1</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100003&lng=es&nrm=iso&tlng=es The vulnerability of prospective credit consumers to over-committing their resources and the inherent dangers posed by credit advertising in particular necessitate the proper regulation of credit marketing. It is therefore not unsurprising that responsible marketing forms part of the responsible lending (and borrowing) measures of various jurisdictions - including South Africa and the Member States of the European Union - with the aim of preventing the extension of credit to consumers who cannot afford it. In this article the credit marketing laws that the South African, European (mainly in the Consumer Credit and Mortgage Credit Directives) and Belgian legislators have enacted are considered and compared, with a focus on the information to be included in advertising, prohibited advertising and prohibited marketing techniques. The ultimate aim is to determine whether South African law contains sufficient guarantees to protect consumers with respect to credit marketing and its consequences. <![CDATA[<b>The Marketing of Consumer and Mortgage Credit as a Responsible Lending Tool: A Comparison of South African, European and Belgian Law: Part 2</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100004&lng=es&nrm=iso&tlng=es The vulnerability of prospective credit consumers to over-committing their resources and the inherent dangers posed by credit advertising in particular necessitate the proper regulation of credit marketing. It is therefore not unsurprising that responsible marketing forms part of the responsible lending (and borrowing) measures of various jurisdictions - including South Africa and the Member States of the European Union - with the aim of preventing the extension of credit to consumers who cannot afford it. In this article the credit marketing laws that the South African, European (mainly in the Consumer Credit and Mortgage Credit Directives) and Belgian legislators have enacted are considered and compared, with a focus on the information to be included in advertising, prohibited advertising and prohibited marketing techniques. The ultimate aim is to determine whether South African law contains sufficient guarantees to protect consumers with respect to credit marketing and its consequences. <![CDATA[<b>The <i>in Vitro </i>Embryo and the Law: The Ownership Issue and a Response to Robinson</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100005&lng=es&nrm=iso&tlng=es In 2012 the Minister of Health made the Regulations Relating to the Artificial Fertilisation of Persons, which provide that the woman who intends to be made pregnant with an in vitro embryo owns such an embryo and can control the embryo's fate in specified ways. Given that in vitro embryos are outside the woman's body, the rationale for these provisions cannot be to protect the woman's bodily integrity. These provisions are, however, problematic from a constitutional perspective, as they: exclude fathers across the board, and impede the right of all intended parents who will not gestate the pregnancy, like surrogacy commissioning parents, to make decisions regarding reproduction - which include the right not to reproduce and hence to veto the further use of an in vitro embryo for reproductive purposes. Robinson argues that the legislative intent with the 2012 Regulations was not to establish ownership of in vitro embryos, and that in vitro embryos are not legal objects (or subjects), but rather form part of the legal subjectivity of their parents. I respond that the language used in the relevant provision is plain and clear in establishing ownership of in vitro embryos, and that in vitro embryos are therefore legal objects. I further suggest that Robinson's proposition of in vitro embryos forming part of the legal subjectivity of their parents may address the gender equality concern with the 2012 Regulations, but that it in turn causes other problems. In particular, Robinson's rationale for his proposition is problematic, as it appears to conflate the embryo with the prospective child. I rely on the important recent judgment in Ex Parte KAF 2019 2 SA 510 (GJ) that held explicitly that the in vitro embryo should not be equated with the prospective child. Finally, I respond to Robinson's critique of my 2005 article, by clarifying the research questions and answers of that article. I highlight the importance of the moral status of the in vitro embryo to legal and ethical debates relating to the in vitro embryo, and invite academic debate on the topic. <![CDATA[<b>Strikes in Essential Services in Kenya: The Doctors, Nurses and Clinical Officers' Strikes Revisited and Lessons from South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100006&lng=es&nrm=iso&tlng=es The right to strike is one of the fundamental rights enshrined in the Kenyan Constitution, 2010. Any limitation to the right involves the danger of collective bargaining. The right to strike is derived from the Right to Organise and Collective Bargaining Convention, 1949 that Kenya ratified on 18 July 1951. Article 2(4) of the Constitution emphasises that any law inconsistent with it is void. The Kenyan Labour Relations Act, 2007 gives effect to the constitutional right to strike but is also subject to a number of limitations. Such limitations include the prohibition of strikes for employees who are engaged in essential services. Although the limitations to the right to strike may be justified, a number of bottlenecks exists in the current scope and application of the Labour Relations Act. For example, the Labour Relations Act does not provide mechanisms in terms of which essential service employees can lawfully embark on strikes. Unlike disputes in South Africa, those about essential services in Kenya are not preceded by consensus-seeking processes such as conciliation, mediation and arbitration. Instead, essential service disputes are referred directly to the Employment and Labour Relations Court for litigation. Consequently, the rights of employees who are employed in essential services like hospitals and patients' right to access health care services can easily be violated. Due to the lacunae in the Labour Relations Act, an increase in the number of strikes in essential services has been witnessed in Kenya. This article argues that the litigation of disputes in essential services should be the option of last resort. In addition, to date, more than 11 years after the Labour Relations Act came into effect, no provisions have been incorporated or even suggested that employer and trade unions need to conclude minimum service agreements and designate employees to perform the minimum services. This article suggests that, trade unions and government can work together through adopting consultative and more inclusive approaches in order to establish an effective statutory framework that regulates the right to strike in essential services in Kenya. <![CDATA[<b>Property Rights of Nigerian Women at Divorce: A Case for a Redistribution Order</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100007&lng=es&nrm=iso&tlng=es In Nigeria, marriage is hardly conceived as a partnership of equals in relation to the property rights of spouses during marriage and at divorce. This is because the Nigerian courts do not redistribute property at divorce. This leaves the financially weaker spouse (usually the wife) at an economically disadvantaged position. This article therefore compares the position of the matrimonial laws in England with that of Nigeria, in order to establish whether there are provisions for the redistribution of property between spouses at divorce. The comparative analysis reveals that family laws in England empower the family court to redistribute property amongst spouses at divorce. On the contrary, the matrimonial property laws in Nigeria provide for the settlement of property at divorce. The analysis also reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife. The article also makes a case for a redistribution through the economic analysis of the worth of a housewife. The authors therefore argue that the Nigerian courts should depart from this approach and borrow from the English courts. The authors recommend the amendment of the matrimonial property laws to fill this gap. That would enable Nigerian courts to make a redistribution order, so as to vary the recognised property rights of spouses in order to provide compensation for any reasonable loss caused by marriage and ensure that the financial benefits of marriage are shared on a just and equitable basis. <![CDATA[<b>A Note on Sentencing Practices for the Offence of the Unlawful Possession of Semi-Automatic Firearms</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100008&lng=es&nrm=iso&tlng=es Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semiautomatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime. <![CDATA[<b>Kuwali D and Viljoen F (edsj <i>By All Means Necessary: Protecting Civilians and Preventing Mass Atrocities in Africa </i>(PULP Pretoria 2017) ISBN 978 1 920538 66 8</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100009&lng=es&nrm=iso&tlng=es Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semiautomatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime. <![CDATA[<b>Langer L <i>Religious Offence and Human Rights: The Implications of Defamations of Religions </i>(Cambridge University Press 2014) ISBN 9781139600460</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100010&lng=es&nrm=iso&tlng=es This contribution is a review of a book on actions which may offend religious feelings even if it was not the intention of the offender to do so. This book illustrates how, drawings (amongst others) on the face of it, may be construed to be a mere exercise of the right to freedom of expression or free speech in a democratic society. This is regardless of the content of the drawing which, to other societies, may constitute an offence. <![CDATA[<b>The Status and Protection of Majors with Impaired Capacity to Act</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100011&lng=es&nrm=iso&tlng=es In this contribution the focus falls on the capacity to act of majors who, due to mental or physical disabilities, lack the ability to make sound decisions in respect of their estate, conclude juristic acts that lead to undue harsh consequences for themselves. The question that arises is how to apply the boni mores as the concept has been developed constitutionally to protect such persons. In this respect it is shown that Dutch law may fruitfully be consulted to comply with courts' discretion to consult foreign law. Mentorskap and the beschermingsbewind qua measures that are aimed specifically at the protection of the non-patrimonial interests of (typically) patients and the patrimonial interests of such people, are of specific relevance. <![CDATA[<b>The South AfricanProsecutor in the Face of Adverse Pre-Trial Publicity</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100012&lng=es&nrm=iso&tlng=es Pre-trial publicity regarding a pending criminal case, which publicity may be in the form of media coverage of the case or a prior decision given in parallel judicial proceedings arising from substantially the same facts as the criminal matter, may be adverse to an accused. Such media publicity or findings contained in the parallel judicial decision may implicate the accused in the commission of the crime on which he or she is to stand trial. The publicity may, for example, suggest that the accused is "guilty" of the crime charged, or that the accused is of bad character having had the propensity to commit the crime. Conversely, pre-trial publicity may portray the accused as innocent of any criminal wrongdoing. In other words, pre-trial publicity may prejudge the issues that are to be adjudicated on at trial. A central question that may arise in these instances is whether there is a real and substantial risk that such publicity would materially affect or prejudice the impartial adjudication of the criminal case; that is to say, whether the publicity is likely to have a biasing effect on the trial court in the adjudication process or the outcome of the trial, thereby imperilling the constitutional right to a fair trial. Another key consideration, in respect of which there is scant literature and case-law, is the question of the impact which adverse pre-trial publicity may have on the prosecutor in instituting and conducting a prosecution. Being unduly influenced by such publicity, a prosecutor may impinge upon the accused's right to a fair trial. There is also a dearth of authority on how the prosecutor is to function in the face of pre-trial publicity which may be prejudicial to the accused. This article seeks to explore these aspects vis-â-vis the prosecutor. It is posited that in an adversarial criminal justice system the same level of impartiality required of the presiding judicial officer is not required of the prosecutor, and that prosecutorial bias towards the guilt of an accused is inevitable where the prosecutor decides to institute a prosecution after studying the police case docket. Thus, exposure of the prosecutor to virulent pre-trial publicity would not be inimical to the fair disposition of the accused's trial provided that the prosecutor conducts the trial fairly and without undue prejudice to the accused and is dedicated to assisting the court in arriving at the truth. Moreover, additional knowledge and understanding of a case which a prosecutor gains from an extraneous source does not amount to bias or prejudice. <![CDATA[<b>Exploring Childhood Statelessness in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100013&lng=es&nrm=iso&tlng=es The United Nations High Commissioner for Refugees set a 10-year timeline in 2014 to prevent childhood statelessness and believes this is possible if the following four steps are taken. First, it urges all states to allow children who would otherwise be stateless to gain nationality in the country where they are born. Secondly, it urges states to reform citizenship laws that discriminate on the ground of gender, so that mothers are able to pass nationality on to their children on an equal basis as fathers. Thirdly, it calls for the elimination of laws and practices that deny children nationality because of their ethnicity, race, or religion. Lastly, and most importantly, it calls on states to ensure universal birth registration to prevent statelessness. The specific focus of this article will be to examine the risk of childhood statelessness in South Africa. It will begin by providing an explanation of statelessness, followed by the causes and consequences of statelessness. It will briefly comment on the two Statelessness Conventions and examine the extent to which the right to nationality in international human rights laws can protect the stateless child. South Africa has not ratified either of the two Conventions on statelessness, but it believes its citizenship laws are sufficient to prevent childhood statelessness. This article aims to interrogate whether South Africa's laws can protect children at risk of being born stateless and provide adequate solutions to this problem. Through this analysis, the four steps identified by the UNHCR to prevent statelessness will be tested against South African law. This article utilises a child-centred approach, viewing children as beings with rights and not merely as objects of protection, as with the State-centred approach. <![CDATA[<b>Ensuring the Reliability of F ire-Arm Identification Evidence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100014&lng=es&nrm=iso&tlng=es Notwithstanding the acceptance of firearm identification by courts, the scientific community has been reluctant to recognise firearm identification as a reliable method of conclusively establishing a connection between a particular bullet and a particular gun. The National Institute of Justice (NIJ) in the United States (US) has categorised firearm identification as a discipline under forensic science, and forensic science has been described as a "fractured and burdened discipline". In addition, in 2009 the National Academy of Sciences (NAS) concluded that forensic science is broken. With regard to firearm identification, the NAS Report emphasised the need for sufficient studies to be done because this report regarded this type of evidence as unreliable and lacking repeatability. The President's Council of Advisors on Science and Technology (PCAST) Report, released in September 2016, came to a conclusion similar to that of the 2009 NAS Report with regard to forensic science evidence. With regard to firearm identification, the report asserted that firearm identification evidence still "falls short of the scientific criteria for foundational validity". It is disturbing that courts across the globe are using different types of forensic science without subjecting them to scrutiny so as to determine their reliability. In the light of this, reliability and validity have become important factors which demand attention in Anglo-American litigation, even in jurisdictions that do not have a formal reliability standard (such as England and Wales, and South Africa). This article shows the role of cross-examination in establishing the reliability of firearm expert evidence. It also focusses on the role that South African forensic practitioners, prosecutors, defence counsels and presiding officers can play in ensuring the reliability of firearm identification evidence. <![CDATA[<b>The Dangers of Convictions Based on a Single Piece of Forensic Evidence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100015&lng=es&nrm=iso&tlng=es The overall goal of the criminal justice system is to ensure that perpetrators of crimes are duly punished and that victims of crimes are duly exonerated. As part of the effort to achieve this goal, the forensic disciplines have become very important in criminal investigations and prosecutions in identifying the guilty and in exonerating the innocent. There is a growing number of cases where people have been convicted based on a single piece of forensic evidence. However, some of the convictions have been found to be wrong, largely, due to the lack of adequate scientific validation of the forensic science methods. Some of these methods include latent fingerprint analysis, bite mark analysis, microscopic hair analysis and firearms identification. This article critically examines the application of forensic evidence in criminal prosecutions and highlights the dangers of convictions based on a single piece of forensic evidence. The findings of recent reports, such as, the National Academy of Sciences (NAS) 2009 Report and President's Council of Advisors on Science and Technology (PCAST) 2016 Report, confirm the critical role and broad scope of these forensic pattern-matching methods. The reports also indicate flaws that affect the accuracy of these methods, such as, inadequate scientific validation, coincidental results (erroneous match), human, laboratory and interpretive errors etc. Therefore, this article argues that the court should follow a cautionary approach when relying on a single piece of forensic evidence and that strong corroboration with other forms of evidence linking the accused to the crime should be required. <![CDATA[<b>Once More <i>uBuntu: </i>A Reply to Radebe and Phooko</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100016&lng=es&nrm=iso&tlng=es This article is a critical engagement with the most recent contribution to the debate on the nature and content of ubuntu. The contribution (by Radebe and Phooko) attempts to provide the concept of ubuntu with substantive content in order for the concept to provide legal solutions for legal problems. This article shows how this attempt largely fails for three reasons. In the first place because some of the suggested rules are social/moral rules that cannot be enforced by law. In the second place because other rules are already contained in common law, legislation or case law. In the third place the remaining rules are arguably either unconstitutional or inappropriate in an open and democratic society. The conclusion is that the suggested rules are not appropriate in an open society. <![CDATA[<b>The Powers of the Office of the Public Protector and the South African Human Rights Commission: A Critical Analysis of <i>SABC v DA </i>and <i>EFF v Speaker of the National Assembly </i>2016 3 SA 580 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100017&lng=es&nrm=iso&tlng=es This article assesses South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA) and Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) and to a lesser extent the state of capture judgments. All of these deal with whether the findings and remedial action of the Public Protector (PP) are binding in certain circumstances. The judgments significantly change the impact and effect of findings made by the Office of the Public Protector (OPP) and have important consequences and lessons for other Chapter 9 institutions. It is apparent from these judgments that there was a concerted attempt to undermine the OPP by systematically disrespecting and not implementing the remedial action. It is argued in the article that egregious violations by public officials contributed to the courts' rulings that the findings of the PP may be binding. The article also explicitly records the unlawful conduct of public officials and the resultant cost and consequence in the hope that conduct of this nature is not repeated. It also specifically notes that the major findings in the Nkandla, SABC and State of Capture reports have withstood judicial scrutiny. Regrettably, this exalted standard has not always been replicated in the reports of the present PP. Finally, the article submits, on the basis of these judgments that the findings of the South African Human Rights Commission should in certain circumstances be binding. <![CDATA[<b>'n Leë Dop is soms beter as 'n Halwe Eier -<i>Gounden v Masterof the High Court </i>[2015] JOL 32896 (KZD) en <i>Govender v Gounden </i>2019 2 SA 262 (KZN)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100018&lng=es&nrm=iso&tlng=es An empty shell is sometimes better than half an egg - Gouden v Master of the High Court [2015] JOL 32896 (KZN) and Govender v Gouden 2019 2 SA 2 SA 262 (KZN) The KwaZulu-Natal High Court, Durban, recently had the opportunity to interpret section 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 within the context of the South African law of succession. This section states that: "A spouse shall not without the consent of the other spouse ... receive any money due or accruing to that other spouse or the joint estate by way of ... inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse." The question before the court was whether a person who is married in community of property requires the consent of his or her spouse in order to repudiate an intestate inheritance. The following aspects were considered by both the court a quo (Gounden v Master of the High Court [2015] JOL 32896 (KZD)) as well as the full bench on appeal (Govender v Gounden 2019 2 SA 262 (KZN)): the distinction between dies cedit and dies venit; the importance of this distinction in electing to either adiate or to repudiate an inheritance; and the implications for the joint estate of spouses married in community of property. The purpose of this contribution is to analyse and critically discuss the reasoning in the judgments in relation to these three aspects. <![CDATA[<b><i>Baleni</i></b><b><i> v Minister of Mineral Resources </i>2019 2 SA 453 (GP): Paving the Way for Formal Protection of Informal Land Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100019&lng=es&nrm=iso&tlng=es In Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) the court, duly following the judicial guidance provided in Maledu v Itereleng Bakgatla Mineral Resources 2019 2 SA 1 (CC), made an important pronouncement on the rights of people who hold informal land tenure. The question in the Baleni judgment concerned the level of consent required to obtain a mining right over property held by a community with informal or customary land tenure. The court specifically considered provisions of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) and the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), and concluded that the provisions of these Acts should be read together when determining the level of consent required. The court found that a community's consent, as required by IPILRA, and not merely consultation with a community, as required by the MPRDA, is necessary before a mining right can be obtained over a community's property. The Baleni and the Maledu judgments set an important judicial precedent protecting informal land owners against the potentially harmful effects of mining activities, and establish a higher standard for obtaining a mining right over such property. However, despite the success of the judgment, many questions remain regarding the longevity of IPILRA, in particular, and a long-term solution to informal land tenure and land security in general. This case note argues that final legislation should be enacted to provide protection for people who hold informal land rights, and consequently to formalise indigenous communities' land rights to ensure that these judgments act as the precursor for fundamental change in the current debate regarding informal land rights. <![CDATA[<b>The Changing Identity on Succession to Chieftaincy in the Institution of Traditional Leadership</b><b>: Mphephu </b><b>ν Mphephu-Ramabulana (948/17) [2019] ZASCA 58</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100020&lng=es&nrm=iso&tlng=es The institution of traditional leadership has from time immemorial been central to traditional authority in the system of customary law. After the dawn of democracy in 1994, the role was fundamentally entrenched in the Constitution of the Republic of South Africa, 1996. The entrenchment would seem to entail the development of a new set of norms and a new ethos in customary law in line with the ideals of the new democracy, and the modification of certain aspects of the system. Of great significance for the transformation of the system is the promotion of the right to gender equality with reference to women's succession to the throne. Various commentators argue for this as an attempt to transform the culture of domination entrenched in a patriarchal system that always undermined the rights of women. Against this background, this article undertakes a comparative analysis of the recent judgments of the Supreme Court of Appeal in Mphephu v Mphephu-Ramabulana 2019 7 BCLR 862 (SCA) and Ludidi v Ludidi 2018 4 All SA 1 (SCA) to determine whether the succession of women to the throne is evidence of the desired transformation of the institution of traditional leadership. The article argues that these judgments have initiated a transformation which has the potential to destroy the identity of the institution of traditional leadership by paving the way for the nomination of women to occupy not just any leadership position in the chieftaincy but the throne itself. It also argues that the interpretation of the right to gender equality through the lens of common law instead of in its own context, which has a communal focus, compromises the transformative or developmental agenda of the institution of traditional leadership as envisaged in the Constitution. The discussion is limited to succession to the "throne" and is not applicable to other leadership positions such as occur in matrilineal systems, or regency and other such traditional leadership roles. This is also not a comparative study that considers other jurisdictions, is further limited to the concept of "gender discrimination", and does not deal with the other technicalities that were raised in these cases. <![CDATA[<b>Legal Standing of Victims in Criminal Proceedings: <i>Wickham v </i></b><b><i>Magistrate, Steiienbosch </i>2017 1 BCLR 121 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100021&lng=es&nrm=iso&tlng=es In late 2016, the Constitutional Court delivered judgment in a case, Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC), involving Wayne Anthony Wickham (an aggrieved father and applicant in this case), who appealed against the decision of the Magistrate's Court in which he was denied the opportunity to hand up a victim impact statement. The thrust of his application was that his rights, as a victim of the crime in which his son was negligently killed by the fourth respondent, had been violated, and that this raised an arguable point of law of general public importance. The respondents, however, argued that the applicant lacked standing as the dominus litis in culpable homicide cases is the public prosecutor, and not the relatives of the deceased, or the victim. The case turned on whether the exercise of discretion by the Magistrate in denying Wickham the right to be heard was performed correctly; and whether a nonparty to criminal proceedings could make an application for the review of the Magistrate's conduct. The article seeks to interrogate the rights of victims in criminal proceedings and aptly poses the following question: Do victims of crimes have a locus standi to be part of criminal proceedings? <![CDATA[<b>Bhuiyan Md JH and Khan BU (eds) <i>Revisiting the Geneva Conventions: 1949-2019 </i>(Brill Nijhoff Leiden 2019) ISBN 978 90 04 37553 6 (cased); 978 90 04 37554 3 (eBook)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100022&lng=es&nrm=iso&tlng=es This contribution reviews the book titled Revisiting the Geneva Conventions: 1949-2019, edited by two legal scholars, namely Md Jahid Hossain Bhuiyan and Borhan Uddin Khan. The book is a commemoration of the 70th anniversary of the Geneva Conventions. It contains a collection of Asian perspectives on challenges of the 21st century. <![CDATA[<b>Demystifying Hate Speech under the PEPUDA</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100023&lng=es&nrm=iso&tlng=es The factual matrix that is considered in each hate speech case differs from that in the next. However, certain factors always remain key in the process of balancing the different constitutional rights at play: who the victim is, who the perpetrator is and the nature of the expression. Additional factors to be considered in deciding whether an expression constitutes hate speech include: historical associations; who the utterer is as against the victim(s); the audience that is addressed and where the utterance is made; and the prevailing social conditions. How South African courts and the South African Human Rights Commission factor in these specific issues in assessing whether an utterance constitutes hate speech is examined in this contribution. Applicable international law principles and comparable foreign law reveal certain areas of the South African hate speech protection requiring refinement. <![CDATA[<b>Is the Dawn of the Robot Lawyer upon us? The Fourth Industrial Revolution and the Future of Lawyers</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100024&lng=es&nrm=iso&tlng=es The practice of law has been largely shielded from technological developments in the course of the past 50 years. While the ways in which legal professionals process and share information have evolved with new technologies - primarily with the emergence of personal computers, email and the internet - these technologies have not fundamentally transformed it. However, if media reports are to be believed, advances in technology in general - and the field known as "Artificial Intelligence" (AI) in particular - are on lawyers' doorsteps, and the legal industry is on the cusp of radical change. Fuelled by big data, increased computing power and more effective algorithms, AI has the potential to fundamentally transform the way in which legal work is done, the way in which law firms conduct business, and the way in which lawyers deal with clients. A number of technologies that fall under the AI umbrella, such as machine learning, natural language processing, deep learning and others, have already brought about the automation of many tasks that were, until recently, performed exclusively by humans because they required human intelligence. AI systems can also be used to perform many tasks that lawyers routinely perform, such as contract analysis, case prediction and e-discovery. And, according to proponents, these emerging technologies can do it cheaper, faster and more efficiently. This contribution examines the notion that recent advances in technology will "disrupt" the legal profession. It first describes the astonishing advances in technological progress, especially the recent rise of AI. It then considers the technologies and areas of legal practice most susceptible to this disruption. It concludes by envisaging what AI might mean for the legal profession, and how current technological trends might, in a relatively short period of time, transform the way in which legal services are delivered. <![CDATA[<b>Do the <i>SALINI </i>Criteria apply to the Definition of an Investment provided in Annex 1 of the 2006 and 2016 SADC Protocol on Finance and Investment? An Assessment</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100025&lng=es&nrm=iso&tlng=es An investment is the subject matter in an investor-state dispute settlement (ISDS or international arbitration) or litigation case. Therefore, there can be no such dispute if there is no investment to which the dispute relates. The challenge in this regard lies in that there is no uniform definition of an investment in ISDS. Across jurisdictions, legal instruments such as bilateral investment treaties (BITs), treaties with investment provisions (TIPs), investment contracts and legislation provide different definitions of an investment. However, if an investor-state dispute arises, these definitions are not always final, since there are different methods of assessing the existence of an investment, depending on the applicable legal instrument and arbitration rules. For example, arbitration tribunals formed in terms of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) follow a two-step process which starts with a consideration of the definition of an investment in terms of the underlying legal instrument, followed by an assessment of the existence of an investment in terms of Article 25(1) of the ICSID Convention. Salini Construttori SPA and Italstrade SPA v Kingdom of Morocco is a landmark ICSID ISDS case that proposed four criteria that an investment should meet in terms of Article 25(1) of the ICSID Convention. On the other hand, ISDS cases based on the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules or other non-ICSID rules determine the existence of an investment by reference to the relevant legal instrument only. However, the tribunal in Romak SA (Switzerland) v Republic of Uzbekistan held that the Salini criteria are applicable to UNCITRAL arbitration, and by implication, to other non-CSID arbitrations and possibly even litigation. The 2006 Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP) defines an investment broadly as any asset, while the 2016 Annex 1 defines an investment as an enterprise incorporated in a SADC Member State and owned by SADC nationals. Furthermore, the 2006 Annex 1 refers investor-state disputes to ICSID or UNCITRAL arbitration, while the 2016 Annex 1 refers such disputes to the courts of host states. This article has two objectives. Firstly, it seeks to determine if, as was held in Romak, the Salini criteria can be applied to the definition of an investment in non-ICSID arbitration and litigation arising from the 2006 or 2016 Annex 1s respectively. Secondly, the article will assess the implications of such an application of the Salini criteria to the protection of foreign investments in the SADC. <![CDATA[<b>Legal Implications relating to being "Entitled to Serve" as a Director: A South African-Australian Perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100026&lng=es&nrm=iso&tlng=es This article focusses on an Australian piece of legislation and interesting case law, as well as on how the Federal Court of Australia has applied Australia's Corporations Act, 2001 to characterise a person as a de facto director - that is, as a professed director whose appointment as such was defective. In this regard, the decisions of that Court will, as envisaged in the Constitution of the Republic of South Africa, 1996 constitute persuasive authority. The Australian decision to be discussed in this article is significant in that the South African Companies Act 71 of 2008 does not contain substantively similar provisions to those of Australia's Corporations Act 2001. For example, section 66(7) of South Africa's Companies Act, 2008 contains the phrase "entitled to serve" as a director. This article explains the legal implications relevant to that expression, including whether it imposes a statutory condition precedent. This article also considers the validity of decisions taken by a person who is not "entitled to serve" as a director. <![CDATA[<b>Hate Speech and Racist Slurs in the South African Context: Where to Start?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100027&lng=es&nrm=iso&tlng=es Protecting people against hate speech and racist slurs requires weighing up several fundamental rights. To maintain legitimacy in enforcing the legislative protection, a fine balance must be struck between the rights to equality and dignity on the one hand and freedom of speech on the other hand. An analysis of the legislative framework ousting hate speech and unfair discrimination on the basis of race and the manner in which the different relevant provisions have been applied by the courts shows that there are discrepancies that must be addressed. Despite the differences between the policy that facilitated the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998, an alignment must be achieved in the starting point for an objective enquiry dealing with racism. To excuse serious cases of hate speech perpetrated by one population group while presuming that the other population group is racist from the outset does not promote South Africa's nation-building project. On the flipside, to address the unbalanced method of interpretation and implementation of the legislative provisions by adjusting the vantage point from which the assessment into whether an utterance is racist and derogatory is commenced would advance the constitutional value of non-racialism. <![CDATA[<b>A Comparative Analysis of the Application of the 1951 Refugee Convention to Victims of Sexual Violence in South Africa, Tanzania and Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100028&lng=es&nrm=iso&tlng=es This article seeks to ascertain whether refugees who are victims of sexual violence in contracting states enjoy access to courts per Article 16 of the United Nations (UN) Convention Relating to the Status of Refugees (1951 Refugee Convention). It does so by comparing the situation of urban refugees in South Africa with that of refugees in camps in Tanzania and settlements in Uganda, beginning with a description of what "accessing courts" entails in the respective domestic criminal justice systems and of what mechanisms are in place for addressing sexual offences. It further uses the qualitative analysis of documented prosecuted cases of sexual violence in South African, Tanzanian and Ugandan courts between 2013-2017, 2009-2016 and 2013-2017 respectively to establish if these countries prosecute cases of sexual violence suffered by their citizens and whether claims of such violations affecting refugees also enjoy the same treatment. The enquiry found that of 328 documented prosecuted cases of sexual offences in South Africa, victims who were citizens were a majority in number. In Tanzania there appeared to be few prosecuted cases of sexual violence against refugees, but given that limited documentation is available, it is difficult to assess the actual figures. In Uganda the 187 recorded prosecuted cases of sexual offences in the years of investigation all related to citizens, despite the introduction of a mobile court to refugee settlements. Overall, this paper recommends that the countries under review adopt measures to ensure the prompt prosecution of cases of sexual violence against refugees and thereby enable them to access courts and testify against their assailants. <![CDATA[<b>Jurisdictional and Procedural Technicalities in Hate Speech Cases: <i>South African Human Rights Commission v Khumalo </i>2019 1 SA 289 (GJ)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100029&lng=es&nrm=iso&tlng=es The jurisdiction or competence of the Equality Court to hear a dispute concerning alleged hate speech is affected by various jurisdictional factors. The decision in South African Human Rights Commission v Khumalo 2019 1 All SA 254 (GJ) reveals several shortcomings in the provisions regulating jurisdiction in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 which must be attended to in order to provide clarity and legitimacy in regard to the application of the protection against hate speech. <![CDATA[<b>Poverty as a Ground of Indirect Discrimination in the Allocation of Police Resources - A Discussion of <i>Social Justice Coalition v Minister of Police </i>2019 4 SA 82 (WCC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100030&lng=es&nrm=iso&tlng=es The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) prohibits indirect and direct unfair discrimination in terms of the grounds listed in the act (such as race, sex, and sexual orientation) as well as unlisted grounds (which are to be alleged and proven by an applicant). South African courts had also grappled with the specific issue of indirect unfair discrimination prior to the enactment of PEPUDA, where applicants could rely on the Constitution of the Republic of South Africa, 1996 directly. This is evident in cases such as Pretoria City Council v Walker 1998 2 SA 363 (CC) and S v Jordan 2002 6 SA 642 (CC). This contribution is an analysis of the pioneering judgment in Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC) (SCJ case), wherein a South African court for the first time recognised poverty as a ground of indirect discrimination under PEPUDA. This conclusion flows from the court's finding, based on expert evidence that the formula used to allocate police resources in the Western Cape unfairly discriminates against poor and Black people in an indirect manner. The analysis of the SCJ judgment will take place against the backdrop of the antidiscrimination framework under PEPUDA and direct constitutional litigation that predates PEPUDA. The underlying theme of intersectionality will also be discussed, as it was apparent from a reading of the SCJ case that grounds of discrimination often intersect with one another and disproportionately affect certain groups of people. <![CDATA[<b>Conflicting Levels of Engagement under the <i>Interim Protection of Informal Land Rights Act </i>and the <i>Minerals and Petroleum Development Act: </i>A Closer Look at the Xolobeni Community Dispute</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100031&lng=es&nrm=iso&tlng=es The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members. Nevertheless, the Department of Mineral Resources (DMR) and mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the consent of communities because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together. <![CDATA[<b>Defining Fairness in Dismissals of Unauthorised Foreign Nationals</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100032&lng=es&nrm=iso&tlng=es It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative. <![CDATA[<b>State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the Covid-19 Crisis and Beyond</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100033&lng=es&nrm=iso&tlng=es This article views section 4 of the Patents Act 57 of 1978 against section 25 of the Constitution of the Republic of South Africa, 1996 and Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (hereafter TRIPS). The purpose is to find a suitable framework for the state/government use/utilisation of patented products or processes for public purposes. A comparison is done with the Crown use provisions in United Kingdom, Australian and Canadian law to find a suitable approach to questions relating to remuneration for state use, the prior negotiations requirement set by Article 31 of TRIPS, and the public purposes and exclusive patent rights that would be included under state use. The COVID-19 international pandemic has caused a state of national disaster in South Africa, which is exactly the kind of situation of extreme urgency envisioned by the exception in Article 31 of TRIPS, which permits the state use of patents without requiring prior negotiations with the patent owner. In the battle against COVID-19 and its concomitant fallout, the South African government (and authorised private parties) would be permitted to utilise patent rights without explicit authorisation from the patent owner and without prior negotiations, but subject to the payment of reasonable remuneration by the government and other terms and conditions as agreed upon or as determined by a court. This may include making (manufacturing), using, exercising, and importing patented products (for example, personal protective equipment, pharmaceuticals, ventilators and diagnostic tests) deemed necessary in the fight against COVID-19. Foreign jurisdictions considered in this article indicate that section 4 of the Patents Act 57 of 1978 may certainly benefit from an update to provide detailed guidance on the state use of patented products or processes for public purposes. In the interest of a timeous offensive against the COVID-19 virus, the patent provisions need a speedy update to allow state use compliant with TRIPS and the Constitution of the Republic of South Africa, 1996. <![CDATA[<b>Appropriate Internal Appeal Mechanisms for Approval of Building Plans: Exploring the Gaps Left by the Constitutional Court</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100034&lng=es&nrm=iso&tlng=es This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospective/future appeals can be lodged and the nature of such an appeal mechanism, where municipal officials disapprove building plans in terms of section 7 of the NBR Act. It is submitted that the invalidation of section 9 by the Court has completely left it up to each individual municipality to decide on whether and how an internal appeal for the approval of building plans is to be pursued. After exploring the options available in terms of other local government legislation, we argue that the most appropriate way to close the gap left by the Court is for Parliament to enact an amendment to the NBR Act providing for an internal appeal mechanism that allows for a measure of coherence and uniformity across municipalities, and yet respects the autonomy of local government. <![CDATA[<b>Consequences for Non-Payment of PAYE and VAT Compared</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100035&lng=es&nrm=iso&tlng=es This article shows that, whereas a bilateral legal relationship exists between the South African Revenue Service (SARS) and a vendor in relation to value-added tax (VAT), a tri-partite legal relationship exists among the SARS, employees and employers in relation to Pay As You Earn (PAYE). This article shows further that employers are, as withholding agents of PAYE, in the same legal position as vendors as regards VAT, namely, they are not in a trust or agency relationship with the SARS. Rather, this article argues that PAYE is in the nature of trust funds held by employers on behalf of employees from whose remuneration it is deducted. Since the employees retain ownership of the PAYE deducted, this article argues that employees have locus standi to lay a charge of theft against employers who misappropriate PAYE. Such a charge of theft is not grounded in tax administration. This article shows further that, as the law presently stands, a charge of theft falls outside the ambit of the remedies available to the SARS against employers and vendors who default in remitting PAYE or VAT. The Tax Administration Act, 2011 read with the Income Tax Act, 1962 and Value-Added Tax Act, 1991 codified only a limited range of criminal sanctions and administrative penalties that may be imposed against a defaulting employer or vendor. If theft is to be included, then a legislative amendment is required. <![CDATA[<b>Thinking-of-the-Animal-Other with Emmanuel Levinas</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100036&lng=es&nrm=iso&tlng=es This article situates the texts in which Emmanuel Levinas directly addresses questions of animality against the backdrop of his larger oeuvre and argues that, despite an explicit attempt to arrange a privileged ethical (dis)position for humans, Levinas' ethical logic opens onto a deeper conception of ethics without boundaries or a priori content. Juxtaposing Levinas' ethical subjectivity with the relational structure underlying the prominent models of animal rights, it proceeds to examine the implications of Levinas' ethics for a theory of animal rights. The article concludes that Levinas' theory is not logically consistent with a thematisation of the ethical claims of animals in the language of rights and that it is best utilised as a framework within which to deconstruct the inherent anthropocentric character of current models of animal rights. <![CDATA[<b>The Origin of Arbitration Law in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100037&lng=es&nrm=iso&tlng=es This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award. A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution. <![CDATA[<b>A Case for Transnational Law in Contemporary Times</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100038&lng=es&nrm=iso&tlng=es When Jessup first wrote about transnational law about 60 years ago, scholarship on globalisation had not started yet. It seems though that transnational law, as we understand it, is as closely related to and has been developing alongside globalisation. However, transnational law and its place in scholarship remains contested. In the context of this contribution, globalisation serves as the catalyst that has transformed the manner in which law is viewed nationally and internationally and as such presents the lens through which transnationality could be understood and conceptualised. The article shows that the transnationalisation of law is inevitable in a fluid and ever-changing society which demands answers and solutions to the increasing problems brought about by and through globalisation. <![CDATA[<b>The Universal Declaration of Human Rights at 70: African Perspectives on Progress and Prospects</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100039&lng=es&nrm=iso&tlng=es This special edition comprises selected papers on critical reflections on the 70th anniversary of the Universal Declaration of Human Rights (UDHR). The authors critique the contextual relevance of the UDHR to the implementation of human rights within selected domestic legal systems in Africa. <![CDATA[<b>70 Years after the UDHR: A Provocative Reflection Shaped by African Experiences</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100040&lng=es&nrm=iso&tlng=es The 70th anniversary of the adoption of the Universal Declaration of Human Rights presents an opportunity for critical reflections from the Global South on why the dream of universalising the rights contained in this ground-breaking document is still just a dream. Shaped by a rigorous interrogation of African experiences as narrated by practitioners and scholars, this paper revisits some of the leading contentious issues which, undoubtedly, have impacted on the realisation of the Universal Declaration of Human Rights on the African continent. The paper revisits the issue of meaning, and how uncertainties surrounding it have triggered controversial perceptions and constructions of the notion of human rights, aggravated by adjectival calibrations. Capturing the views of scholars and practitioners, this paper takes an evidence-based approach to the matter as it identifies and discusses some of the common, recurrent challenges that have compromised the aspiration of universalising the ideals articulated in the Universal Declaration of Human Rights. These include, amongst other things, the impact of slavery and the slave trade, colonialism and neo-colonialism, the nature and impact of western hypocrisy, double-standards, bias and inconsistency - factors that not only dilute the recognition of human rights but further deepen the mistrust and misgivings Africans have about human rights. Lastly, the paper appraises the adverse impact of corruption on the realisation of human rights on the African continent. It is argued that all these factors, cumulatively, adversely impact on the perception and realisation of human rights on the African continent. <![CDATA[<b>The Impact of Myths, Superstition and Harmful Cultural Beliefs against Albinism in Tanzania: A Human Rights Perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100041&lng=es&nrm=iso&tlng=es It cannot be denied that myths and superstitions have endured through history and that people have been affected by them since the beginning of time. Superstitious beliefs and myths that result in the victimization of persons with albinism (PWA) are centuries old, are present in cultural attitudes and practised around the world. In Africa and in Tanzania in particular, PWAs have also been targeted because of harmful speculation and unfounded myths which place their lives at risk. As members of society PWA have human rights that need to be protected against any kind of violation, particularly against being killed, tortured and discriminated against. This article analyses various legal provisions that protect the rights of PWA as articulated in various UN covenants and conventions as well as regional treaties and national laws. Secondary data are consulted to examine the extent of the erroneous beliefs which heavily fuel the persecution and killing of PWA. It is found that there are deep-seated myths, superstitions and harmful cultural beliefs the existence of which seems to pose a serious obstacle to the implementation of the law and the protection of the rights of PWA in Tanzania. The article recommends awareness-raising and education in general for Tanzanian society as an approach towards the protection of PWA. <![CDATA[<b>Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100042&lng=es&nrm=iso&tlng=es The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement. <![CDATA[<b>Bhuiyan Md JH and Jensen D (eds) <i>Law and Religion in the Liberal State </i>(Hart Publishing 2020) ISBN 978 1 50992 633 6 (cased); 978 1 50992 635 0 (eBook); ePub 978 1 50992 634 3</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100043&lng=es&nrm=iso&tlng=es This contribution reviews the book titled Law and Religion in the Liberal State, and edited by two scholars, namely Md Jahid Hossain Bhuiyan and Darryn Jensen. The book contains a collection of papers dealing with the relationship between law and religion in liberal jurisdictions such as Great Britain, Europe, Italy, the USA, Australia and India. It also contains a few contributions that explore the relationship between religious freedom and certain traditions, such as Roman Catholicism and Orthodox Christianity. It also has a contribution on the theological ideas of Roger Williams, who is regarded as the founder of the Rhode Island's colony.