Scielo RSS <![CDATA[Potchefstroom Electronic Law Journal (PELJ)]]> vol. 24 num. 1 lang. pt <![CDATA[SciELO Logo]]> <![CDATA[<b>The Taxation of Company Distributions in Respect of Hybrid Instruments in South Africa: Lessons from Australia and Canada</b>]]> Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments. <![CDATA[<b>Warrantless Search and Seizures by the South African Police Service: Weighing up the Right to Privacy versus the Prevention of Crime</b>]]> The constitutional right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa, 1996. It is premised on the notion that all persons should be protected from intrusions on their privacy by any person or institution. The Constitutional Court has also, on numerous occasions, held that the right to privacy is bolstered by its connection with the right to human dignity. It is undeniable that every person's right to privacy should be protected. However, a person's right to privacy is violated when police officials conduct warrantless search and seizure operations. Generally section 22 of the Criminal Procedure Act provides for warrantless search and seizure operations when a police official has a reasonable suspicion that a search warrant will be issued to him and that a delay in obtaining such a warrant would defeat the object of the search. Warrantless searches are important for the prevention of crime, but recent case law has suggested that there has been a progressive shift towards protecting the right to privacy of the individual subjected to warrantless searches, since there are a number of laws besides section 22 that regulate warrantless searches and which have been declared to be constitutionally invalid. This article seeks to demonstrate that the current regulatory framework for warrantless searches should be reviewed in order to protect the legitimacy of the police as well as the dignity and privacy of the citizens of South Africa. <![CDATA[<b>Compensating Landowners? The State's (Limited) Duty toward Landowners in Delayed Eviction Matters</b>]]> The unlawful occupation of private land creates a tension between the interests of the unlawful occupiers to avoid homelessness and the landowner to regain control of its property. To balance the interests and rights of the occupiers and the landowners, courts have relied on the municipality, due to its constitutional housing duty, to provide the unlawful occupiers with alternative accommodation. The provision of alternative accommodation prevents homelessness, while at the same time allowing the landowner to regain control of its property. In response to demands by unlawful occupiers that they provide alternative accommodation, municipalities have either failed to cooperate or argued that they are unable to accommodate the unlawful occupiers immediately due to resource constraints. This has led to delays in eviction matters to the detriment of landowners. Only in one delayed eviction matter did the Constitutional Court order relief for the landowner. It ordered the municipality to pay constitutional damages to the landowner. After this order, scholars have advocated for similar relief to be granted in other delayed eviction matters. This article aims to add to that debate, by determining under what circumstances an award of constitutional damages in such matters would be appropriate, just and equitable, as is required of a constitutional remedy. <![CDATA[<b>Revoking a Decision to Suspend Payment of Disputed Tax "on Further Consideration": An Administrative Law Perspective</b>]]> The "pay now, argue later" rule entails that the obligation to pay tax and the right of the South African Revenue Service (SARS) to receive and recover tax are not suspended by objection or appeal. However, in terms of section 164(2) of the Tax Administration Act 28 of 2011 (hereafter TAA), a taxpayer may request a senior SARS official to suspend the payment of disputed tax and a senior SARS official may, in terms of section 164(3) of the TAA, grant such a suspension having regard to certain relevant factors. Section 164(5) of the TAA further provides that the decision to suspend may be revoked on a number of grounds. One of the grounds is when a senior SARS official is satisfied, on further consideration of the factors which had to be taken into account when the suspension was granted, that the suspension should not have been granted. There is no indication in the TAA that this ground for revoking the suspension requires that there should be a material change in the factors, as this is provided for in a separate ground to revoke the decision to suspend the payment of disputed tax. It is also not required, for example, that the taxpayer should have failed to disclose information when making the request to suspend the payment. It is argued in this article that the ground for revoking a decision to suspend payment "on further consideration of the factors" raises concerns from an administrative law point of view. This is based on the revocation being an "administrative action" as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996 read together with the Promotion of Administrative Justice Act 3 of 2000, which requires that the revocation should be lawful, reasonable and procedurally fair. The concerns raised in this article relate not only to the rights of taxpayers, but also to the duties of the SARS officials revoking a decision to suspend payment as it is equally important that administrators should be able to know how and when to act in a manner which is lawful, reasonable and procedurally fair. <![CDATA[<b>Interpretation of Wills - Does the <i>Endumeni </i>Case Apply?</b>]]> This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form. It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. If the aim is to determine the meaning of a testamentary provision, then a testator's intention must be ascertained as memorialised in the written text of the will read as a whole, taking into account also the purpose of the text and its context. If, on the other hand, the aim is to determine whether a document is a testator's intended last will and testament, as is the case when section 2(3) of the Wills Act 7 of 1953 is invoked, then a testator's intention must be ascertained with reference to the document's purpose, taking also into account all legally relevant and admissible internal and external contextual factors. It is argued that all this is, as confirmed in Endumeni, consistent with the modern trend favouring an objective, purposive, contextual cum teleological mode of documentary interpretation. <![CDATA[<b>The Legal Operation of Liens: Theory and Practice</b>]]> The legal operation of liens has been the source of academic debates for many years. Liens are traditionally classified as enrichment liens and debtor-and-creditor liens (contractual liens). In the instance of an enrichment lien the creditor (lienholder) has a contract with a non-owner and not with the owner (debtor) himself. Consequently, the creditor can vest a lien against the owner of the thing only on the grounds of unjustified enrichment. Enrichment liens are classified as real rights. In the instance of a debtor-and-creditor lien (contractual lien) the creditor (lienholder) has a contract with the owner of the thing and the contract is the basis for the liability of the owner (debtor) towards the creditor. Debtor-and-creditor liens are generally classified as personal rights. This classification causes confusion regarding the legal operation on the one hand of an enrichment lien as a real right and on the other hand of a debtor-and-creditor lien (contractual lien) as a personal right. This paper proposes that the origin of the legal claim for which the lien serves as security (unjustified enrichment or contractual) merely determines the debt (expenses) for which a lienholder can vest his lien and does not determine the classification of a lien as either a real right or a personal right. A lien can be described as a defence against the owner's rei vindicatio and is, in principle, enforceable only against the owner of the thing (security object). A lien can, however, also be enforced against parties other than the owner, including the creditors (who, for example, want to attach the thing subject to the lien) of the owner (debtor) and other real claimants. The enforcement of a lien against these parties is referred to as the real operation (third-party action) of a lien. This paper analyses the legal operation of a lien with specific reference to the debt (expenses incurred) secured by the lien, the vesting (existence) of a lien, the real operation (third-party action) of a lien and the preferential position of a lienholder in the case of the debtor' insolvency. <![CDATA[<b>Innovative Regulation of Meat Consumption in South Africa: An Environmental Rights Perspective</b>]]> Meat production is a human activity driven by meat consumption, a human behaviour normalised in today's society. Human activity stems from particular psychological patterns (manifesting as human behaviour). It is argued that through regulating the human behaviour of meat consumption the environmentally harmful impacts of the human activity of meat production can potentially be mitigated. In particular, adopting an environmental rights perspective and a social ecological ethic, this article proposes the introduction of a meat tax in South Africa as an innovative means of regulating the human behaviour of meat consumption. In Section 1 we introduce our arguments and discuss the social, ecological, ethical and environmental rights perspective from which we make them. Next, in Section 2 we discuss some of the most significant environmental harms caused by meat production and thus, indirectly, meat consumption. Then, in Section 3 we critically evaluate the command-and-control regulatory measures that currently regulate the human activity of meat production and seek in no meaningful way to regulate the psychological patterns associated with that human activity, the human behaviour of meat consumption. Lastly, in Section 4 we propose a meat tax, a type of market-based mechanism, as a regulatory measure which we argue could serve to influence human behaviour in order to reduce meat consumption and give better effect to the environmental right. <![CDATA[<b>Challenges to the Prohibition on Sovereignty in Outer Space - A New Frontier for Space Governance</b>]]> The current space arena has changed significantly since the 1950s, when outer space activities commenced. At the time of the adoption of the Outer Space Treaty (and the related General Assembly Resolutions), the outer space arena was largely dominated by the political interests of the two major space powers, the USA and the (then) USSR. Although states have remained the primary actors in regulating the use of outer space, the extent to which private companies would become involved in the exploration and use of space was not envisaged at the time of the conclusion of the space treaties. It is particularly the involvement of private space actors that complicates the traditional understanding of the prohibition on territorial sovereignty in outer space. With specific reference to the outer space boundary, the principle of the common heritage of humankind and property rights in outer space, this contribution aims to highlight some of the challenges to the prohibition of sovereignty in view of current developments in the arena of outer space. This analysis suggests that the blanket prohibition on sovereignty in outer space should be re-evaluated in order to keep up with the fast developing technological advancements in space exploration, and that clear legal rules be developed to provide legal certainty for all role players. <![CDATA[<b>Reflecting on the Role and Impact of the Constitutional Value of <i>uBuntu </i>on the Concept of Contractual Freedom and Autonomy in South Africa</b>]]> Private parties have the freedom and autonomy to enter into a contract. This autonomy is deeply rooted in their dignity and personal liberties. Private individuals, in furtherance of their autonomy and freedom to enter into a contract, have certain reasonable expectations, most fundamental of which is the desire that maximum respect is given to their legitimately concluded agreement. The concept of contractual freedom and autonomy connotes the idea that private individuals (natural and juristic) have the liberty to arrange their affairs in a manner that meets their economic interest without governmental inhibition, control and/or interference. However, the operative scope and the practical manifestations of the concept of contractual freedom are circumscribed in the constitutional, statutory, legislative and other socio-cultural orders of States. This article seeks to reflect on the role and influence of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the naturally accompanying concepts of pacta sunt servanda and sanctity of contract in South Africa. The article provides an analysis of the judicial interpretation and views on the concept of contractual freedom and autonomy relative to other competing values that underlie the Constitution of the Republic of South Africa. Furthermore, the article appraises the impact of those judicial views on international commercial agreements. The article also discusses the extent to which communitarian values such as the concept of ubuntu have been infused into South African contract law and further reflects on the implication of infusing such communitarian values in both domestic and international contracts. The article concludes with a suggestion that the introduction of traditional African values in South African contract law fundamentally alters the theoretical foundations of the principle of contractual freedom and autonomy in both domestic and international contracts. <![CDATA[<b>The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion</b>]]> The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the Companies Act, 2006 (United Kingdom). The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime's achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants. <![CDATA[<b>Social Protection Instruments and Women Workers in the Informal Economy: A Southern African Perspective</b>]]> The world of work has changed and in some instances a realisation now exists that certain forms of work are a reality and not a passing occurrence, and it is of the utmost importance that international regulation provides for this, including work in the informal economy. Specific vulnerable groups and challenges have been identified by international regulators and must now be addressed to extend protection to these workers. International regulation must promote freedom through the enhancement of the capabilities of these workers. International instruments can function as key strategic tools to address inequalities in the workplace by increasing the capabilities of vulnerable groups such as women through empowerment initiatives. The purpose of this contribution is to identify and critically consider the relevant international social security instruments of the ILO and the UN, the impact of international standards, and other global initiatives directed at the social protection of women workers in the informal economy. <![CDATA[<b>Altering the Human Genome: Mapping the Genome Editing Regulatory System in South Africa</b>]]> Novel therapeutic strategies using genome editing technologies, such as CRISPR-Cas9 are revolutionising the way in which diseases can be prevented and treated in the future. Consequently, a global debate has emerged around the ethical and legal implications relating to the use of such technology in research, therapy, and human reproduction. This has brought to the forefront questions regarding the extent to which current policies respond to these issues. In this article we provide a "map" of South African policy relating to genome editing, and illustrate how current ethical guidelines and law regulate its use. We find that the South African legal and policy framework is marred with inconsistencies and incompleteness, and that an opportunity exists for the normative and regulatory framework governing this field of research and therapeutic application in South Africa to be reviewed and reformed. In this article we present certain recommendations - with the goal of informing and supporting health policy and decision-making regarding the regulation of genome editing in South Africa. We suggest that by adopting a pragmatic regulatory approach such recommendations serve to address public concern, reflect appropriate international perspectives, and provide a firm foundation for the development of genome editing regulation in South Africa. <![CDATA[<b>An Analysis of the "National Security Interest" Provision in terms of Section 18A of the Competition Act 89 of 1998</b>]]> This contribution examines the implications of the "national security provision" in terms of section 18A of the Competition Act 89 of 1998 as inserted by section 14 of the Competition Amendment Act 18 of 2018. The effect of section 18A is that it confers upon the President of the Republic of South Africa power to appoint a national security committee whose mandate is to investigate mergers involving a foreign acquiring firm and determine whether such a merger would pose a threat to the "national security interests". The contribution highlights the possible challenges that the insertion of section 18A may precipitate. It argues that while the protection of national security interests is imperative, it is however not the goal of competition policy to regulate broader national security policy. In making the argument, cognisance is taken of the fact that where a gap exists in policy, legislative amendments may be used as stopgap mechanisms. The paper investigates the treatment of national security interests in foreign jurisdictions in a bid to establish whether the provision is in line with international best practice and whether any lessons may be drawn therefrom. <![CDATA[<b>The Standard of the Reasonable Person in Determining Negligence - Comparative Conclusions</b>]]> The standard of the reasonable person or its equivalent, in general, is used in many jurisdictions to determine fault in the form of negligence. Although the standard is predominantly objective it is also subjective in that the subjective attributes of the person against whom the standard applies as well as the subjective circumstances present at the time of the delict or tort lend themselves to an objective-subjective application. In South African law, before a person can be judged according to the standard of the reasonable person, the person must first be held accountable. If a person cannot be held accountable, then the standard does not apply at all. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments or experts. Therefore, depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly. The general standard of the reasonable person would be raised when dealing with experts, for instance, and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons with physical disabilities and so on. <![CDATA[<b><i>Quo Vadis </i>Patent Litigation: <i>Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation </i>2020 1 SA 327 (CC) - In Search of the Bigger Picture on Patent Validity</b>]]> In October 2019 the Constitutional Court (CC) handed down judgment in the matter of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC). This is its first judgment dealing with the validity of a patent and, as it concerns issues that go the heart of patent law, the judgment potentially has far-reaching implications for patent litigation in South Africa. At issue was the question of whether a court's finding of patent validity on one ground in a revocation hearing ought to have a bearing on a subsequent infringement hearing on the same patent, to the extent that the alleged infringer is barred from raising a different ground to attack the validity of a patent. In essence, did the attempt to do so offend the principle of res judicata? This was a direct appeal to the Constitutional Court after the High Court ruled that it did so offend, and the Supreme Court of Appeal refused leave to appeal. The Constitutional Court was deadlocked on this issue, with the result that the decision of the High Court refusing Ascendis' application to amend to introduce a new ground of attack stands, and the res judicata objection was upheld. The decision raises important questions about the application of the principle of res judicata in such cases where the Patents Act allows dual proceedings for revocation and infringement actions, the meaning of provisions of the Act as they relate to the certification of patent claims, and the broader public interest considerations implicated in patent law adjudication. This note observes that while the outcome sends a strong signal about the courts' displeasure at attempts to prosecute "repeat litigation", an unsatisfactory outcome is that patents can apparently be validated on the basis of merely one of the mandatory requirements for patent validity as required by the Act. It argues that such an outcome is undesirable and does not serve the public interest. This is because it closes the door to further challenges while potentially thousands of patents, which would not have passed the validity test had they been subjected to substantive examination, remain on the patent register. <![CDATA[<b>Reviewing the Speaker's Decision: A Brief Synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)</b>]]> In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future. This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA. The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine. <![CDATA[<b>Can an Emoji Be Considered as Defamation? A Legal Analysis of <i>Burrows v Houda </i>[2020] NSWDC 485</b>]]> This article considers the Australian case of Burrows v Houda 2020 NSWDC 485 and the English case of Lord McAlpine v Bercow 2013 EWHC 1342 (QB). Both cases considered the question of whether emojis could be considered to be defamatory and answered the question in the affirmative. This article also explores whether the South African courts will follow the lead of the Australian and English courts and concludes that emojis also have the potential to be considered defamatory in our law. <![CDATA[<b>Post-resignation Survival of Fiduciary Duties</b><b>: <i>Big Catch Fishing Tackle Proprietary Limited </i></b><b><i>ν Kemp </i>(17281/18) 2019 ZAWCHC 20 (5 March 2019</b>]]> In Big Catch Fishing Tackle Proprietary Limited v Kemp (17281/18) 2019 ZAWCHC 20 (5 March 2019) the Western Cape Division, Cape Town had to determine whether a former director of a company continued to owe fiduciary duties to the company after he had resigned, and if so, whether he could temporarily be interdicted from competing with the company until the main action was heard in court. The court dismissed the company's application for an interim interdict. This article critically analyses the judgment in regard to the post-resignation fiduciary duties of directors. The judgment is noteworthy as it sheds light on the post-resignation fiduciary duties of directors -an area of law which is still developing in South African law. This article contends that the court incorrectly conflated the legal principles relating to the appropriation of corporate opportunities with the misuse of confidential information. It is further argued that courts should not lay down a closed list of instances when directors' fiduciary duties will continue post-resignation, as the court attempted to do in this case. It is suggested that courts should adopt a flexible and pragmatic approach in determining when a director's fiduciary duties will survive after his or her resignation. <![CDATA[<b>Family Conferencing: Responsibility at Grassroots Level - A Comparative Analysis between the Netherlands and South Africa</b>]]> As family group conferencing is gaining world-wide recognition as an alternative dispute resolution process, this article aims to outline the origin and relevance of this process, which promotes solution-finding to family problems by the family themselves and/or the social network and usually results in a plan or agreement that will be implemented collaboratively by the people involved. Although it was originally used in child protection matters, the process is now used for a wide range of problems pertaining to families and individual family members, including divorce matters, the illness or death of a family member, the care of the elderly, family financial problems, bullying, addiction cases, domestic violence and child justice matters. The process is also suitable for application in problems concerning any group, neighbourhood or school. Next, the application of family group conferencing in both the Netherlands and South Africa is first examined and then briefly compared. It appears that family group conferencing through Eigen Kracht in the Netherlands is an established practice which consists of a relatively simple and quick process and yields positive results for families/communities experiencing problems. Recently the Dutch Youth Act of 2015 (Jeugdwet) made legislative provision inter alia for a family group plan to be drafted by parents, in conjunction with next-of-kin or others who are part of the social environment of a youth/juvenile person. On the other hand, although extensive legislative provision is made for family group conferencing by the Children's Act 38 of 2005 in children's court proceedings and by the Child Justice Act 75 of 2008 in the child justice system in South Africa, the process has not yet reached its potential in terms of the implementation of the concept. Lastly, some recommendations are made which mainly aim to contribute to the implementation of the concept in South Africa, in that the model will eventually be fully developed and utilised for the benefit of individuals, children, their families and/or social network. <![CDATA[<b>The Significance of Sea-level Rise for the Continuation of States and the Identity of their People</b>]]> This article considers the legal institutions which give people identity and may anchor them to particular places. But what happens to that identity when "place" no longer exists? The focus of this article is the question of the legal status of those whose homelands disappear under the waves. Unlike persons displaced by war or political upheaval, as experienced after the Second World War, such persons do not fall within the usual understanding of the term "refugee". The erosion of the foundations of their identity has, in some cases, been gradual and incremental, but without territory can we talk of the sovereignty of states or the citizenship of individuals? Is the latter "place bound" or does citizenship mean more than just affiliation or "rootedness" to a particular place? Does nationality depend on a nation and if so, what is it that makes a nation? These questions are pertinent to all those whose homelands may disappear as a result of natural disasters or rising sea levels. They are particularly, but not only, relevant to people in the Pacific living on low-lying atolls such as in Tuvalu, Kiribati and parts of the Solomon Islands. In the Pacific, exchanges among strangers start with the question "Where are you from?" Can a person be a Pacific islander if he or she has no island? This article considers how that will be answered by those who are from lands under the seas, and what changes may have to be made to the international legal frameworks that determine identity in these circumstances. <![CDATA[<b>An Analysis of the Implementation of the CaseLines System in South African Courts in the Light of the Provisions of Section 27 of the <i>Electronic Communications and Transactions </i>Act 25 of 2002: A Beautiful Dream to Come True in Civil Procedure</b>]]> The Electronic Communications and Transaction Act 25 of 2002 is an effective piece of legislation that strives to put South African law on the map of the evolving global world. However, some provisions have not yet been recognised in civil proceedings, particularly section 27 of the ECT Act. Although some rules attempt to embrace e-technology, such as Rule 4A of the Uniform Rules of Court, this is not sufficiently compliant with e-technology. The CaseLines system implemented by the judiciary seeks to enforce this section to a certain extent but a lacuna has been identified and must be modified. This article analysis the CaseLines system with reference to section 27 of the ECT Act and provides solutions and recommendations. <![CDATA[<b>Nobody can Really Afford Legal Services: The Price of Justice in Namibia</b>]]> Nobody (except for the privileged few) can afford legal services in Namibia. In the light of this dawning awareness, how should the government and other stakeholders design the legal profession so that the greatest number of Namibians can access legal services and, ultimately, justice while preserving the profession's financial viability? The predominantly economic nature of this question means that its solutions lie less in the field of law than in the field of economics. Thus, this article adopts a methodology that reflects that insight. As a primary purpose, this article works towards solving the high cost of legal services in Namibia. It utilises a literature-review methodology that searches the scholarship on the legal profession for practical, down-to-earth solutions put forward in other countries to take the edge off the prohibitive cost of legal services. The article mainly finds that, if structured as a compulsory salary deduction, legal insurance promises the greatest positive impact on costs. And it concludes that the optimal solutions should consist of measures aimed at heightening competition in the legal profession and measures that broaden cost-sharing in providing legal assistance to the public. The article argues that competition can be effectively increased by lubricating the flow of information about prices and services, and by having more public entities bear the burden of expanding the system of legal assistance. <![CDATA[<b>Deterministic Application of Process-centric Law to the System-centric Requirements of Procurement Procedures</b>]]> South Africa's public procurement system is accorded constitutional status, establishing fundamental requirements for the operation of the system. The application of these constitutional system requirements and their interpretation in the judicial adjudication of procurement cases have highlighted the tension between the administrative, or process-centric, legal requirements and the system-centric nature of procurement procedures. The importance of a deterministic approach for procurement decision-making can be considered from two angles - the certainty of the procurer in the conformity of its own conduct and external certainty to diminish the risk of unnecessary challenge. This article revisits the foundational rationale for system-based procurement procedures and associated decision-making for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based. These principles are tested against a selection of adjudicated outcomes to formulate practical recommendations for practitioners aimed at deterministic decision-making in the procurement process. <![CDATA[<b>Exempting Health Research from the Consent Provisions of POPIA</b>]]> The Protection of Personal Information Act 4 of 2013 (hereafter POPIA) has the potential to disrupt health research in South Africa. While the legal status quo is that broad consent by research participants is acceptable, POPIA requires specific consent for any processing of research participants' health and genetic information. However, POPIA offers mechanisms such as an exemption from specified measures which can potentially be used to ameliorate its impact. It is proposed that the health research sector should seek to utilise these mechanisms - in particular, a sector-wide exemption of all health research projects from the requirement of specific consent by research participants, subject to the conditions that: (a) a health research project must be approved by a health research ethics committee, and that (b) either specific, broad or tiered consent must be obtained for a health research project. Importantly, it would be counter-productive to approach such an application for exemption from the perspective of inconvenience for health researchers. Instead, an application for exemption must be approached from a human rights platform, and must be supported by solid evidence. Such evidence should include the results of empirical studies of South African research participants' preferences. <![CDATA[<b>The Development of Cryptocurrencies as a Payment Method in South Africa</b>]]> The use of currency as a medium of exchange for goods and services is essential in our daily lives. The concept of currency evolved from bartering to the use of coins and notes and now to the current digital age as the continuation of society's advancement has led to a new series of technological innovations with regard to payment methods around the world. Methods of payment are built on various platforms such as mobile phones, the internet, and digital storage cards. These payment systems have fostered the development and growth of fintech companies such as Paypal, Apple Pay, Samsung Pay, Alipay and others. The latest development is the use of blockchain to facilitate payments, more specifically the use of cryptocurrencies to facilitate transactions. The most popular cryptocurrency is bitcoin. Payments form part of commercial contracts which parties have a legal obligation to perform. South Africa has a legislative framework for payment systems wherein users have rights and obligations. This article will discuss the development of currency in South Africa and determine whether the current legislative framework for payment systems is applicable to cryptocurrencies such as bitcoin. <![CDATA[<b>A Duty Perspective on the Hate Speech Prohibition in the <i>Equality Act</i></b>]]> In November 2019 the Supreme Court of Appeal in Qwelane v South African Human Rights Commission ruled that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) 4 of 2000, otherwise known as the "hate speech" prohibition, was unconstitutional. The court said it was vague, overbroad and therefore unjustifiably infringing the right to freedom of expression. This contribution argues that every person's duty to respect others is central to the hate speech prohibition, and should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. References to relevant case law in various legal contexts provide the framework within which legal duties are examined in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. The constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others are examined. The state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996 to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3) is reiterated. Finally, these duties are related to the section 10(1) prohibition in the Equality Act. Refuting the Supreme Court of Appeal's ruling in Qwelane, the reasonableness standard is applied to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. <![CDATA[<b>The Right of Child Offenders to Intermediary Assistance in the Criminal Justice System: A South African Perspective</b>]]> The right of a child offender to participate effectively in criminal proceedings is a fundamental aspect of a right to a fair trial and is guaranteed in the Constitution of the Republic of South Africa, 1996 as well as in international instruments, including the United Nations Convention on the Rights of the Child. An argument is made that ensuring that this right is fully realised at domestic level, allowances should be made for child offenders to be included in the provisions of section170A of the Criminal Procedure Act 51 of 1977. Section 170A makes allowances for the use of an intermediary by witnesses and victims when presenting testimony in criminal proceedings. It is argued that the principle of the best interest of the child as well as other rights such as the right to dignity and equality enshrined in the Constitution and guaranteed in international instruments warrants the inclusion of child offenders in the enabling legislation. An interpretation and implementation of Section 170A of the Criminal Procedure Act in line with the Constitution and international instruments that give recognition to the child offender's vulnerability and enforce the best interests of the child offender are accordingly advocated. <![CDATA[<b><i>Fraus Legis </i>in Constitutional Law: The Case of Expropriation "Without" or for "Nil" Compensation</b>]]> Fraus legis - defrauding or evading the application of law - is a phenomenon well-known to students of private law, but its application in public law, including constitutional law, remains largely unconsidered. To consider whether a transaction, or, it is submitted, an enactment, is an instance of fraus legis, an interpreter must have regard to the substance and not merely the form of an enactment. In 2018 Parliament resolved to amend section 25 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to allow government to expropriate property without being required to pay compensation. While the public and legal debate has since before that time been concerned with "expropriation without compensation", the draft Constitution Eighteenth Amendment Bill, 2019 provides instead for expropriation where "the amount of compensation is nil". By the admission of Parliament's legal services unit, this is a distinction without a difference. But compensation and expropriation are legally and conceptually married, and as a result, it would be impermissible to expropriate without compensation - instead, nil compensation will be "paid". How does this current legal affair comport with the substance over form principle, and is fraus legis at play? This article considers the application of the fraus legis phenomenon to public law, utilising the contemporary case study of the Constitution Eighteenth Amendment Bill. <![CDATA[<b>Automated Facial Recognition in Law Enforcement: The Queen <i>(On Application of Edward Bridges) v The Chief Constable of South Wales Police</i></b>]]> The use of automated facial recognition in law enforcement is still a novel practice and as a result the legislative framework for this technology is ill-defined. The judgement of The Queen (on application of Edward Bridges) v The Chief Constable of South Wales Police [2020] EWCA Civ 1058 is the first case in the world that examines pertinent legal questions pertaining to this new technology. Automatic facial recognition may be used in law enforcement, but to prevent massive human rights violations, operators should perform their duties within a well-defined legal framework where discretion is kept to the minimum, and strict data-retention policies are followed. Furthermore, human oversight should always be part of an automated facial recognition system to ensure accuracy, fairness, and compliance with the law. <![CDATA[<b>DNA Evidence as the Basis for Conviction</b>]]> The sufficiency of DNA evidence alone, with regard to convicting accused persons, has been interrogated and challenged in criminal cases. The availability of offender databases and the increasing sophistication of crime scene recovery of evidence have resulted in a new type of prosecution in which the State's case focuses on match statistics to explain the significance of a match between the accused's DNA profile and the crime-scene evidence. A number of such cases have raised critical jurisprudential questions about the proper role of probabilistic evidence, and the misapprehension of match statistics by courts. This article, with reference to selected cases from specific jurisdictions, investigates the issue of DNA evidence as the exclusive basis for conviction and important factors such as primary, secondary and tertiary transfer, contamination, cold hits and match probability which can influence the reliability of basing a conviction on DNA evidence alone, are discussed. <![CDATA[<b><i>The Consumer Protection Act </i>68 of 2008 and Parol Evidence</b>]]> The conflict between the objectives of the Consumer Protection Act 68 of 2008 - to protect consumers and ensure accessible and transparent redress - and the purpose of the parol evidence rule - to exclude extrinsic evidence and observe the maxim pact servanda sunt - is evident and forms the basis of this article. The purpose of consumer protection legislation is to balance the rights of consumers and suppliers, to protect the interests of consumers and to ensure efficient redress for consumers who have been wronged. The parol evidence rule, which is still in effect in South Africa, prohibits extrinsic evidence in a dispute to interpret a written agreement between parties to ensure certainty on the terms and conditions agreed to in writing. In practice, the parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements. It is obvious that the strict enforcement of the parol evidence rule in consumer agreements could lead to unjust results in consumer disputes. The provisions of the Consumer Protection Act 68 of 2008 are discussed to establish the extent of the limitation of the parol evidence rule therein. Then, the Consumer Rights Act, 2015 in the United Kingdom is considered to establish the tendency to limit the application of the rule in foreign consumer legislation, and to compare that to the position in South Africa. This article discusses whether the restriction or limitation of the parol evidence rule in the Consumer Protection Act is efficient in reaching the aims and objectives of the Act. <![CDATA[<b>The Need to Adopt Preventative Measures to Combat the Misappropriation of Retirement Fund Assets</b>]]> This paper discusses the challenge of the misappropriation of retirement fund assets by trustees, fund asset managers and retirement funds' administrators. It demonstrates that retirement fund members lose substantial retirement benefits due to the illegal and unlawful conduct of those who manage and administer retirement funds. It evaluates whether the South African legislative framework offers retirement funds and their members adequate protection from activities that may compromise the delivery of the pension promise such as: mismanagement; fraudulent activities; gross negligence; and the outright looting of retirement fund assets. In particular, this paper illustrates that the law in South Africa does not deter would-be wrongdoers from acting in a manner that may compromise the benefits expected by retirement fund members when they exit their funds. It advocates the adoption of adequate preventative legislative measures that would make it difficult for anyone to act in a manner that would compromise retirement fund members' benefits in South Africa. <![CDATA[<b>Personal Data Security in South Africa's Financial Services Market: The Protection of Personal Information Act 4 of 2013 and the European Union General Data Protection Regulation Compared</b>]]> The contemporary global financial services market has witnessed a substantial increase in cybercrime which places consumers' personal data at risk. Rapid increases in cybercrime linked to the financial services market have driven financial market regulators to pass novel laws and regulations aimed at curbing the rate of occurrence of cybercrimes connected to personal data sharing. To that end, banks and/or financial services companies in Europe have swiftly moved to comply with the European Union's General Data Protection Regulation. Whilst personal data protection regulation is not a new concept in Europe, most African countries (with exception of South Africa) do not have laws and regulations on personal data protection. With the financial services market being extremely vulnerable to cyber risks owing to the digitisation of the financial services sector, it is important to assess the suitability of South Africa's current regulatory framework concerning the protection of personal data. This article thus examines South Africa's Protection of Personal Information Act 4 of 2013 with a view to ascertaining its suitability and/or adequacy in protecting personal data in the country's financial services market. With the global Covid-19 pandemic bringing about concerns related to rapid increases in cyber-attacks in the financial services market owing to the increased sharing of the sensitive personal data of consumers, there is also need to test the POPIA's conformity with the strict European Union GDPR personal data protection guidelines. <![CDATA[<b>Towards Ingenious Technology and the Robust Enforcement of Financial Markets Laws to Curb Money Laundering in Zimbabwe</b>]]> Technology has positively contributed to the creation of financial markets and the facilitation of payments globally. The effective use of robust technology could enhance the consistent enforcement of financial market laws by curbing financial crimes in any country. This in turn would enhance the integrity of financial markets and promote the viability of financial markets. In relation to this, it appears that Zimbabwe has struggled to comply with international measures to combat money laundering and the financing of terrorism (AML/CFT) since it has poor financial market laws which are inconsistently enforced due inter alia to its poor money laundering detection mechanisms and inadequate resources. For instance, Zimbabwe has to date failed to make satisfactory progress to adopt and enforce adequate risk mitigation measures against money laundering practices in accordance with the Financial Action Task Force (FATF) recommendations. This is evidenced by the increased incidence of money laundering in Zimbabwean financial markets. Furthermore, the inconsistent enforcement of financial market laws has resulted in poor liquidity and the recent suspension of the Zimbabwe Stock Exchange (ZSE). The viability and integrity of the Zimbabwean financial market has thus been compromised. This article discusses the integration and use of robust technology in the Zimbabwean financial market to curb financial crimes such as money laundering and bank fraud. The adequacy of financial market laws and/or regulations will also be discussed vis-à-vis their consistent enforcement by relevant bodies such as the Financial Intelligence Inspectorate Evaluation Unit (FIU) in Zimbabwe. This is done to evaluate the use of technology to curb money laundering and promote a viable economy and financial market in Zimbabwe. It is submitted that the relevant authorities should promote the effective use of technological inventions like artificial intelligence (AI) and machine learning to curb money laundering, bank fraud and other related financial crimes in Zimbabwe. <![CDATA[<b>The Reliance on Lifestyle Audits for Public Officials to Curb Corruption and Tax Evasion in Nigeria</b>]]> Widespread corruption in the Nigerian public service is having a far-reaching detrimental effect on the economy. Public officers and other policy makers that formulate socio-economic policies are the main perpetrators of corruption in Nigeria. This article focusses on the viability of lifestyle audits for public officials as a strategy for combating such corruption, the proceeds of which are usually laundered and warehoused either offshore or in Nigeria with the assistance of professionals such as bankers and lawyers. If such warehoused wealth is discovered it is usually forfeited to the treasury of the government of Nigeria, after the trial of the offenders. This article interrogates the adequacy of the relevant legislation and the efficacy of the statutory bodies responsible for lifestyle audits in Nigeria, such as the Code of Conduct Bureau, which is discussed, as are the Code of Conduct Bureau and Tribunal Act, 2010, the Economic and Financial Crimes Commission Act, 2004, and the income tax reporting framework administered by the Federal Inland Revenue Service. It appears that the provisions relating to lifestyle audits under the Nigerian statutes are not robust enough to curb corruption and tax evasion. In addition, the enforcement of such lifestyle audits is hindered by the immunity granted to certain Nigerian public officers and jurisdictional conflicts in prosecuting corruption cases. <![CDATA[<b>Differences between Members and Shareholders of a Friendly Society and the Payment of Dividends: A South African-Australian Perspective</b>]]> This article focusses on a very specific problem statement, namely how shareholder society relationships are viewed in Australia and South Africa. Friendly societies are special "legal creatures" enjoying legal personality from the date and time of their registration (not as companies). In South Africa friendly societies have been in existence for more than 160 years, with the latest legislation being promulgated in 1956. As an unregistered company, the friendly society forms part of the South African business enterprise landscape and has both members and shareholders. The legal relationships between members and shareholders and the payment of a dividend are unclear in the Friendly Society Act, 1956, and are generally regulated by the constitution or memorandum of incorporation of the friendly society. In Australia friendly societies developed approximately 200 years ago. In 1999 friendly society legislation was repealed by the Financial Sector Reform Act, 1999, in terms of which friendly societies had to convert to companies either as companies limited by guarantee or public companies as regulated by the Corporations Act, 2001. Prior to 1999, friendly societies were largely regulated by the Queensland Friendly Society Act, 1997 as unregistered companies. The Code regulated the relationships between members and shareholders and the payment of dividends. In this article we also focus on Australian friendly societies after 1999 and how they compare with South African friendly societies with regard to the member/shareholder relationships and the payment of dividends. <![CDATA[<b>Mainstreaming Black Women into Managerial Positions in the South African Corporate Sector in the Era of the Fourth Industrial Revolution (4IR)</b>]]> The active participation of Black South African women in the corporate sector is essential for the achievement of equity and diversity. Since 1994 the sector has failed to promote black women into managerial positions despite the existence of the Employment Equity Act 55 of 1998 that requires the equitable representation of previously disadvantaged groups on all occupational levels. Conversely, the managerial positions in the South African corporate sector continue to be dominated by white males and little effort is being made to achieve equity. The paucity of black women persists in the corporate sector during a period in which South Africa, like many other countries, is preparing itself for the fourth industrial revolution, which has broad implications for the sector. Black women are under-represented in the emerging technological environment in South Africa, and this imbalance is further perpetuating the exclusion of black women from managerial positions. This paper argues that the emerging technological environment presents an opportunity for the corporate sector to reflect on the training needs of Black women and prioritise technology in its quest to achieve equity. An increase in the number of black women with technological skills would enhance their prospects of occupying meaningful managerial roles. The corporate sector in South Africa is expected to comply with progressive statutory interventions and policies to advance women in the emerging technological environment who have the right qualifications, experience, and competency to fill the managerial positions from which they were previously excluded. In this paper we examine and analyse the challenges which are hampering the progression of black women into managerial echelons in post-1994 democratic South Africa. In order to present an objective and balanced view, we also present the strides being taken by some corporates (very few of them) to address the problem of the obstacles to the advancement of Black South African women to managerial positions. <![CDATA[<b>Enhancing the Value of Patents as Corporate Assets in South Africa: How can Artificial Intelligence (AI) Assist?</b>]]> Although the accounting definition of assets contemplates intangible, abstract assets such as those embodied in intellectual property (IP), South African company law largely views IP as a legal and not a business asset. This paper tentatively suggests an approach that uses artificial intelligence (AI) to mitigate weaknesses in the South African patent law relating to the absence of patent searches and examinations. It is hoped that using AI will enable the filing of quality patents that satisfy the prescribed patentability criteria. High-quality patents will allow companies to accumulate patents as corporate assets. The approach is based on the algorithmic use of AI technologies such as machine learning, natural language processing, deep learning alongside the Internet of Things, and IP analytics to strengthen South Africa's IP system and create asset value for corporations. The paper recommends using the proposed AI technologies by companies and the Patents Office to enable the filing of high-quality patents, which will lead to the accumulation of corporate assets in the form of patents. The methodology is doctrinal, and the paper relies on recent literature on IP and AI, South African law, case law and examples drawn from studies conducted in other countries. <![CDATA[<b>The Integration and Reliance on Technology to Enhance the Independence and Accountability of Company Directors in South Africa</b>]]> The most indispensable means of change in contemporary business society is technology because it offers convenience to both businesses and their clients. Almost every business has been influenced by technology. Traditional corporate governance systems have been affected as technology has ceased to be a mere business enabler but is now a source of a company's future potential opportunities. The infusion of corporate governance and technology has been quite slow in South Africa. This may either be attributed to the fact that it is costly to do so, at least in the short term, or that company directors in South Africa do not yet trust technological measures with corporate decision-making input. Consequently, the impact of decision support technology on corporate entities and their governance has received less academic interest in South Africa than in developed countries. This article seeks to discuss the integration and reliance on technology to enhance corporate governance principles in developing countries like South Africa. The article also discusses the practical challenges and the benefits to be anticipated by directors in South Africa when they integrate technology in decision making to enhance their independence and accountability. <![CDATA[<b>The Nexusbetween Mobile Money Regulation, Innovative Technology and the Promotion of Financial Inclusion in Zimbabwe</b>]]> The advent of mobile money innovations has given people in rural areas, informal settlements and other poor communities an opportunity to participate in Zimbabwe's mainstream financial economy. However, the technology-driven money services have presented some challenges to the traditional banking sector in general and the regulation of financial services in particular. Firstly, most mobile money services are products of telecommunication corporations, which are not banks. Telecommunication companies use their network reach to provide mobile money services via mobile devices at a cheaper cost than banks across the country in Zimbabwe. As such, banks face unprecedented competition from telecommunications companies that are venturing into financial services. It also appears that prudential regulation of banks cannot keep up with the fast pace at which technological innovations are developing and this has created a disjuncture between the regulation and the use of technological innovations to promote financial inclusion in Zimbabwe. The Banking Act [Chapter 24:20] 9 of 1999, the Reserve Bank of Zimbabwe Act [Chapter 22:15] 5 of 1999 and the National Payment Systems Act [Chapter 24:23] 21 of 2001 have a limited scope in terms of the regulation of mobile money services in Zimbabwe. The Ministry of Finance and Economic Development launched the National Financial Inclusion Strategy (NFIS) 2016-2020 to provide impetus to the financial inclusion of the poor, unbanked and low-income earners in Zimbabwe. However, the NFIS appears to push more for bank-led financial inclusion than it does for innovation-driven initiatives such as mobile money services. This article highlights the positive influence of mobile money services in improving financial inclusion for the poor, unbanked and low-income earners in Zimbabwe. The article also seeks to point out gaps and flaws in the financial services regulatory framework that may limit the potential of mobile money services to reach more people so that they actively participate in the Zimbabwean economy. It is submitted that the Zimbabwean mobile money services regulations and the financial regulatory framework should be carefully amended in line with the recent innovations in mobile money to adequately regulate the use of mobile money services and innovative technology to address the financial exclusion of the poor, unbanked and low-income earners in Zimbabwe. <![CDATA[<b>The Regulation and Use of Artificial Intelligence and 5G Technology to Combat Cybercrime and Financial Crime in South African Banks</b>]]> Artificial intelligence (AI) and fifth generation network technology (5G) are now being utilised by some companies and financial institutions such as banks to enhance their competitiveness and expand their businesses. The general types of AI include functional AI, interactive AI, text AI, visual AI and analytic AI. The key components of AI include machine learning, fast Internet connectivity, deep learning, neural networks and advanced data analysis. These components may be complemented by the adoption and use of standard 5G cellular networks. 5G utilises broadband Internet access and Internet connection, and is now employed by some banking institutions, especially in developed countries. It is not clear whether South African banking institutions have adopted 5G for their Internet connectivity and operations. AI and 5G may be used to detect and combat cybercrimes in banking institutions. On the other hand, AI and 5G may also be abused by cybercriminals to commit financial crimes such as money laundering and insider trading. In this regard it is submitted that South African policy makers should carefully revise the Cybercrimes Bill B6-2017 (Cybercrimes Bill) to embrace the use of AI and 5G to detect and combat cybercrimes in South African banks. Accordingly, this article examines the adequacy of the Cybercrimes Bill. It also explores the regulation and use of 5G and AI to detect, prevent and combat cybercrimes in banks and other financial institutions in South Africa. <![CDATA[<b>A Legal Analysis of the Use of Innovative Technology in the Promotion of Financial Inclusion for Low-Income Earners in South Africa</b>]]> The promotion of financial inclusion is important for the combating of financial exclusion in many countries, including South Africa. Nonetheless, most low-income earners living in rural areas and informal settlements are still struggling to gain access to basic financial products and financial services in South Africa. This status quo has been caused by a number of factors such as the absence of an adequate financial inclusion policy, the geographical remoteness of financial institutions to most low-income earners, rigid identity documentary requirements, a lack of access to reliable and affordable Internet connection by low-income earners living in informal settlements and rural areas, a lack of financial illiteracy, the high costs of financial services, unemployment and poverty, over-indebtedness, and cultural and psychological hindrances to low-income earners in South Africa. Consequently, these factors have somewhat limited the access to financial services offered by financial institutions to low-income earners living in rural areas and informal settlements. In many countries, including South Africa, the financial sector is relying on innovative technology, especially in banking institutions, to aid in the offering of financial services to their customers. It is against this background that this article discusses selected legal and related challenges affecting the regulation and use of innovative technology to promote financial inclusion for low-income earners in South Africa. The article further discusses possible measures that could be adopted by the government, financial institutions and other relevant regulatory bodies to promote the use of innovative technology to combat the financial exclusion of low-income earners in South Africa. <![CDATA[<b>Digital Financial Services: Prospects and Challenges</b>]]> Digital financial services (DFSs), being financial services accessed and delivered through digital channels, have grown rapidly in South Africa as well as globally. The adoption of the technology for DFSs has led to an increase in financial inclusion, enabling more individuals and businesses to have access to useful and affordable financial products and services, where payments, savings, credit, investment and insurance are included. Through the Financial Sector Regulation Act 9 of 2017 financial inclusion was statutorily enacted for the first time. The regulators are now empowered to insist that financial institutions take proactive steps to expand financial inclusion and can take the necessary steps to enforce these powers. One of the factors that have an influence on whether consumers will adopt DFSs is consumers' perspectives of DFSs. Lack of information and knowledge combined with the cost of data negatively influences the adoption of DFSs. The transfer of information to unbanked people in South Africa with regards to DFSs should be enhanced by the state as it strives to improve financial literacy. DFSs are susceptible to financial crimes like fraud, money laundering, terrorist financing, bribery, corruption and market abuse. The challenges that threaten the interests of customers should be addressed by stricter information verification methods when transacting with clients online. Technological detectors and digital identification should be used more effectively to verify customers and to alert authorities to suspicious transactions. Financial institutions might consider authenticating online transactions by thumb-print or a voice recognition system. This paper emphasises that because of the prospects of greater and deeper financial inclusion in South Africa, the use of DFSs has to be improved and developed and the challenges have to be constructively addressed to unleash the true potential thereof. <![CDATA[<b>Municipal Courts and Environmental Justice in South African Local Government</b>]]> South African law establishes environmental justice (EJ) as among the environmental management principles to direct decision-making. EJ's inclusion as a guiding principle in the National Environmental Management Act 107 of 1998 (NEMA) is relevant because of its legacy of continuing environmental injustices and inequalities concerning natural-resource dependent services and benefits. Also, the municipal service delivery of water and sanitation, electricity, land matters and municipal health should supplement, not compromise local communities' environments, and access should be equitable. In the event of service delivery-related environmental injustices, it is to be expected that communities must have remedial options available, one of which may be access to the judicial system. Therefore, this article seeks to identify and explain the role municipal courts may play specifically in strengthening the relationship between municipal service delivery and improved grass-root level environmental justice in South Africa. The underlying question is whether such courts can be agents of (environmental) change where local communities are exposed to environmental harm due to the failure of municipal services or the environmentally harmful actions of other community members or local industries. <![CDATA[<b>Recalibrating Everyday Space: Using Section 24 of the South African Constitution to Resolve Contestation in the Urban and Spatial Environment</b>]]> Positioned as existing predominantly within a green agenda, the right to an environment (section 24 of the Constitution of the Republic of South Africa, 1996) presents numerous opportunities for rights-based interpretation in the "brown" urban and spatial environment. In this article I conduct such an exercise, focussing on both the right to freedom of movement (section 21 of the Constitution) and the right to the safety and security of the person (section 12 of the Constitution). I begin by drawing out the historical and contemporary spatial implications of both rights, drawing on empirical research that demonstrates how the enclosure of everyday space through gating practices and private securitisation in the South African city serves to extend spatial apartheid into the current day. A siloed interpretation of both rights, however, leads to an impasse between the two. Both rights are prima facie of an equal value in a constitutional setting. To resolve this standoff, I argue for the use of the environmental right as a constitutional value. This is an underutilised right in the South African Constitution, and yet it holds much promise given how it seeks to protect the health and wellbeing of both present and future generations. There are two benefits to employing the environmental right as a constitutional value. First, the environmental right situates both section 12 and section 21 in a symbiosis of individual claims to shared resources, in the process recalibrating the human ecology of the urban and spatial environment away from the centrality of dominant actors and towards a polycentricity of interests. In so doing, section 24 provides a fuller and more connected picture of both rights. Second, the duty implicit in the environmental right reveals how to begin realising these rights on a wider scale that goes beyond individual injustices and towards community justice. I argue strongly that this duty exists on the state: left unattended to, everyday space becomes the preserve of those with the means - financial or otherwise - to shape space according to their own anti-public interests. In this regard, I present two instances of policy and legal choices available to the state that serve to undo contemporary experiences of spatial apartheid. <![CDATA[<b>The Potential of Public-Private Partnerships (PPPs) in the Pursuit of Sustainable Development Goal 11 in Zimbabwe</b>]]> The international community has recognised cities as important drivers of development and poverty reduction by including SDG 11 in the United Nations 2030 Sustainable Development Agenda. Even though the Sustainable Development Goals (SDGs) do not have any legal force, SDG 11 seeks to make cities and human settlements across the world "inclusive", "safe", "resilient" and "sustainable" by 2030. While cognisant of the interdependence of these qualifiers, this article focusses on the issue of "sustainability" in the light of the view that a city cannot be said to be sustainable unless it is inclusive, safe and resilient. Cities on the path to a sustainable future are expected in terms of SDG 11 to invest in public infrastructure to provide services to local communities in a sustainable manner. Due to limited fiscal space, urban local authorities in Zimbabwe, as elsewhere, would have to harness private sector participation in infrastructure investment through Public-Private Partnerships (PPPs) to transition to a sustainable future. This article interrogates the extent to which the constitutional, legislative and policy frameworks in Zimbabwe enable urban local authorities to adopt and implement PPPs in order to achieve their mandate and by extension to realise local sustainability as envisaged in terms of SDG 11. The analysis reveals varied results about the potential of PPPs to contribute towards local sustainability in Zimbabwe. It is further argued that the legal framework underpinning PPPs has some generic features that could enhance their relevance and potential in the pursuit of sustainable cities in Zimbabwe. <![CDATA[<b>A Note on the Ninth Amendment to the <i>Constitution of Lesotho</i></b>]]> The Constitution of Lesotho has been amended nine times since its adoption in 1993. The latest amendment, styled the Ninth Amendment to the Constitution, was assented into law in May 2020 amidst great controversy. The Amendment makes fundamental changes to the Constitution. Its main thrust is to cushion parliament from early dissolutions necessitated by a motion of no confidence against the government. The Amendment has also introduced other significant changes to the Constitution. Those other changes are on the prorogation of parliament, the Prime Minister's resignation for personal reasons and the caretaker government. All these changes have been inspired by the country's constitutional problems since the advent of coalition politics in 2012. The purpose of this commentary is to critique these changes. The paper contends that the changes brought about by the Ninth Amendment can at best be regarded as interim rather than permanent measures, while the long-lasting constitutional reforms are being prepared for the country. <![CDATA[<b>Comment on the Single Marriage Statute: Implications for Customary Marriages, Polygynous Marriages and Life Partnerships</b>]]> The South African Law Reform Commission has proposed a single marriage statute to reconcile the several enactments regulating marriage in South Africa. This comment argues that the Bill should include old customary marriages in its definition of a customary marriage and is underinclusive in its recognition of polygyny with a religious or cultural basis and not the more general practice of polygamy. Furthermore, the requirement of cohabitation for the recognition of a life partnership is onerous and may exclude vulnerable parties from protection. While the Bill is commended for requiring a husband to obtain the consent of existing wives before he concludes a further marriage, the note recommends that the Bill give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women. <![CDATA[<b>Data Commercialisation in the South African Health Care Context</b>]]> Realisation of the value and the commercialisation potential of data is gaining exponential momentum. The combination of historical data exploitations and the use of technologies that allow for the triangulation of data results in the collection, storage, and processing of massive amounts of data require diligent data management, including adherence to privacy and other laws, both nationally and internationally. The intrinsic value of scientific data, especially in genomics, becomes apparent when data are shared, often in collaboration with international partners, and compiled into big data sets that are subsequently used for benefit, including commercial benefit. The purpose of this article is to explore the commercialisation of data in South Africa against the backdrop of the legal framework governing the protection of personal information, confidentiality and privacy, with a specific focus on genetic and genomic information. Related issues, such as the collection and sharing of data, ownership of data and challenges about informed consent are also considered. After a brief evaluation of the African regulatory landscape relating to the protection of personal information, the article concludes with a few recommendations aimed at improving the status quo and sensitising the South African public as to the value of their data and personal information, as well as the potential uses and abuses to which their personal information may be subjected. <![CDATA[<b>What about the Child? Preventing the Publication of Children's Names After the Age of 18</b>]]> Children are afforded a number of different protections when they encounter the criminal justice system. The need for special protection stems from the vulnerable position they occupy in society. When children form part of the criminal justice system by being an offender, a victim or a witness they may be subjected to harm. To mitigate against the potential harm that may be caused, our law provides that criminal proceedings involving children should not be open to the public, subject to the discretion of the court. This protection naturally seems at odds with the principle of open justice. However, the courts have reconciled the limitation with the legal purpose it serves. For all the protection the law offers and the lengths that it goes to in order to protect the identity of children in this regard, it appears there is an unofficial timer dictating when this protection should end. The media have been at the forefront of this conundrum to the extent that they believe that once a child (an offender, victim, or witness) turns 18 they are free to reveal the child's identity. This belief, grounded in the right to freedom of expression and the principle of open justice, is at odds with the principle of a child's best interests, the right to dignity and the right to privacy. It also stares incredulously in the face of the aims of the Child Justice Act and the principles of restorative justice. In the context of the detrimental psychological effects experienced by child victims, witnesses, and offenders, this article aims to critically analyse the legal and practical implications of revealing the identity of child victims, witnesses, and offenders after they have turned 18. <![CDATA[<b>The Need for Feminist Approaches for Housing Cases in South Africa</b>]]> Although South African courts have handed down progressive judgments concerning the right to access to adequate housing, they have failed failed to do so from a feminist point of view. The trajectory of housing jurisprudence emanated from a sequence of evictions that occurred in Cape Town and the Johannesburg inner city. This article provides an analysis of four pertinent cases, namely Grootboom, Olivia Road, Blue Moonlight and Dladla. A gendered perspective was absent from the arguments before the court and from the court's interrogation and analysis of matters that came before it. This failure was a shortcoming, given the harsh lived realities that affect women who experience eviction based on their race, gender and class. It is against the backdrop of the failures of Constitutional Court cases that lawyers use feminist litigation approaches and courts in housing adjudication. <![CDATA[<b>Should South Africa Criminalise <i>Ukuthwala </i>Leading to Forced Marriages and Child Marriages?</b>]]> In 2014 the South African Law Reform Commission (SALRC) released a Discussion Paper on the practice of ukuthwala. The Discussion paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill). The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including because of ukuthwala. In view of the SALRC's proposed Prohibition Bill, this paper investigates whether South Africa should criminalise ukuthwala or not. The paper also examines the advantages and disadvantages of criminalising breaches of ukuthwala in the protection of women and girls affected by the practice by drawing upon the field research findings from the community where the S v Jezile 2015 2 SACR 452 (WCC) case originated. Among other findings, the field research show that the practice of ukuthwala is deeply rooted in the communities where it is still prevalent to the extent that the approach taken by the Prohibition Bill, expecting the victims to report their own parents or family members to law enforcement agents, might force the practice to go underground. Ultimately, we suspect that this might make it more difficult to protect women and children's rights violations associated with ukuthwala. We therefore recommend that to effectively address the malpractices surrounding ukuthwala, the process of law reform look at the elements of ukuthwala, the procedure that is followed, appreciate the cultural significance of the practice, as well as understand the merits and demerits of the customary delictual claims that are already used by communities where processes of the practice have been breached. In this way, communities will be more receptive to any government's efforts that are aimed at addressing forced and child marriages linked to ukuthwala. In addition, we submit that unless government prioritises awareness campaigns into the communities that are going to be affected by the proposed law reform, such law, will again be what Himonga calls "paper law". <![CDATA[<b>Reconciling the "Bittersweet Chemistry" between Technology and Corporate Takeovers through Reinforcing National Security Interests in Merger Control</b>]]> This article argues that company takeover regulation regimes must carefully balance two opposing notions. On the one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to the ever-increasing need to protect national security interests, especially from veiled threats. These threats include cybercrimes, private data hacking and espionage, which are endemic to takeovers contemplated by foreign persons that possess technological sophistication and are leaders in the rapidly unfolding Fourth Industrial Revolution. Recently some jurisdictions, such as the United States of America and the United Kingdom, have been active in reforming their investment laws to particularly strengthen the protection of national security interests. Similarly, in South Africa the debut introduction of section 18A of the Competition Amendment Act 18 of 2018 has enabled the addition of a concurrent but parallel standard to the pre-existing merger control criteria prescribed under section 12A of the Competition Act 89 of 1998. This article evaluates the efficacy of South Africa's framework for national security interests' protection in the context of merger control using its US and UK counterparts as comparators. Ultimately, the article proposes reforming the existing statutory and institutional framework to effectively accommodate national security interests in South African merger control. <![CDATA[<b>Cryptocurrency: Towards Regulating the Unruly Enigma of Fintech in Nigeria and South Africa</b>]]> One of the most modern inventions of financial technology (FinTech) since after the global financial crisis of 2008 is the crypto or virtual currency/asset. Since the creation of the first cryptocurrency, the Bitcoin, in 2009, it is estimated that over five thousand variants of the Bitcoin and other cryptocurrencies have emerged. Virtual currencies have become widespread across the globe but their legal status and uses in various countries have remained uncertain. They have been variously classified as currencies, securities, properties, assets, commodities and tokens, and used as means of exchange but are not legally recognised as legal tender. In many jurisdictions their emergence was greeted with scepticism and express or tacit rejection by financial and securities markets regulators, but over time, owing to their increasing popularity, characteristics, positive and negative potentials, there has been a gradual shift towards their formal recognition and regulation. Regulatory authorities in many countries are now grappling with designing appropriate policy and regulatory framework for the crypto phenomenon. This paper interrogates the current legal status and efforts to regulate cryptocurrencies in two leading African nations, Nigeria and South Africa, and highlights the challenges of designing an appropriate regulatory framework for this enigmatic technology. The paper adopts the doctrinal legal research methodology, employing the descriptive, analytical, and comparative approaches. It follows a structured review and analysis of relevant extant legislation on currencies and securities in the countries to ascertain whether they cover cryptocurrencies. It then compares the current position of the law on the subject in the two countries. Bearing in mind that it may not be possible to totally ban dealing in cryptocurrencies, the paper concludes that regulation has become imperative. Drawing from the position on the subject in more developed nations, the United States of America (US) and the European Union (EU), this paper proposes a model of regulation of virtual currency not only for Nigeria and South Africa but also for other African countries. <![CDATA[<b>Corruption and Corporate Governance in Namibia: An Analysis of the Strategic Approaches in the 4th Industrial Revolution</b>]]> The advent of new technology and the 4th Industrial Revolution has introduced new facets of corporate crimes and regulatory challenges for the enforcement of anti-corruption laws. Acknowledging the negative effects of corruption on the private sector, corporate governance mechanisms may help reduce corruption in the private sector by ensuring that corporations are managed in the best interest of the corporation and the shareholders or investors. This article aims to evaluate the adequacy of the regulatory measures intended to promote good corporate governance in Namibia thereby cushioning the Namibian financial market from the negative effects of corporate corruption. It provides an exposition of the concepts of corporate corruption and corporate governance by considering the relationship between the two. It further provides an analysis of the Namibian corporate governance regime and the anti-corruption legislative framework. It is submitted that if Namibia is to realise the financial market objectives set out in its policy documents, there is a need for the introduction of robust strategic approaches in corporate governance directed at curbing and/or reducing corporate corruption responsive to the 4th Industrial Revolution challenges, amongst others. <![CDATA[<b>Municipal Instruments in Law for Cultural Heritage Protection: A Case Study of the City of Cape Town Metropolitan Municipality</b>]]> The premise of this article is that local government can add to the protection effort of cultural heritage resources in South Africa by way of instruments such as by-laws, planning instruments and local policies. Cultural heritage resources in the context of this article include both tangible and intangible manifestations of culture and heritage. Schedule 4A of the Constitution of the Republic of South Africa,1996 (the Constitution) assigns "cultural matters" to national and provincial governments as a concurrent function. Municipalities are expected to execute aspects of this function based on a few rights in the Constitution (sections 15, 30, 31 and 24) as well as the heritage, environmental and local government framework legislation and policy documents of South Africa. As a first step to assess what local government can de jure contribute to cultural heritage protection and management, this article evaluates the national legislative framework for cultural heritage resource management (CHRM) and explores the instruments it creates for municipalities to help give effect to CHRM. To give life to this analysis, the article further probes into a select few instruments of the City of Cape Town Metropolitan Municipality and two specific court cases concerning CHRM in the City. <![CDATA[<b>The Role of the Courts in Advancing Water Security in South Africa</b>]]> This article explores the role which courts could play in promoting water security in South Africa. As the country is one of the driest on the continent, its water security issues remain at the forefront of the service delivery conundrum. Therefore, issues of water security often need to be litigated to arrive at a favourable and just outcome. This is where the focus of this article lies. Based on a critical analysis of the legal framework governing water security and relevant case law, the article argues that courts could promote water security by discharging certain duties. Firstly, the courts must uphold the applicable law by weighing the rights and interests that relate to water and must then make reasonable, just and equitable findings. Secondly, the courts must solve water-related disputes between parties by interpreting and applying the applicable laws and policies. It is submitted that by executing these two functions, the courts contribute to a deeper understanding of the water security discourse. Finally, it is argued that through the execution of their traditional judicial functions, courts contribute to the making of law that directly affects water security. <![CDATA[<b>Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in <i>Discovery Ltd v Liberty Group Ltd </i>2020 4 SA 160 (GJ)</b>]]> This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1 )(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.