Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> vol. 16 num. 1 lang. en <![CDATA[SciELO Logo]]> <![CDATA[<b>Editorial by Prof C Rautenbach</b>]]> <![CDATA[<b>The academia as profession</b>]]> <![CDATA[<b>Constitutional socio-economic rights and international law</b>: <b>"You are not alone"</b>]]> <![CDATA[<b>Common problems affecting supranational attempts in Africa</b>: <b>an analytical overview</b>]]> Ever since the colonial era, attempts have been made throughout the various regions of Africa at building supranational units chiefly for administrative and legal convenience. Examples of such attempts include the Federation of Rhodesia and Nyasaland, the East African High Commission and the federations in former French West and Equatorial Africa, all of which were attempts at forging a supranational nation state. These experiments laid the foundation for further supranational initiatives in post-colonial Africa. In this respect, every region in Africa has either experimented with or is currently experimenting with the idea of supranational regional organisations. This article aims at investigating selected attempts at supranationalism on the continent, the successes and failures of such experiments, and the lessons to be learnt from them. As Africa embarks on the journey of solidifying its unity through the establishment of leviathan continental institutions, efforts should be geared towards building on the experiences of past and present experiments at the sub-regional level. Such experiments offer instructive lessons as they are rooted in similar historical and social contexts. <![CDATA[<b>Battered women and the requirement of imminence in self-defence</b>]]> Should the South African courts abolish the traditional imminence standard, something must be used to stand in its place. The identification of the various alternatives which have been suggested to replace imminence - most notably the establishment of the "reasonable woman standard" as advanced in the case of S v Engebbrechtt 2005 (92) SACR 41 (W) - has moved the law of self-defence into the realm of subjectivity. The end result not only undermines self-defence as a justification defence, but is also unworkable for a number of reasons. For instance, utilising expert testimony to explain how the battered woman's syndrome affects individual perception would leave a judge with no meaningful way to determine if that abused woman's belief in the imminence of danger was reasonable, even if viewed from her distorted perspective. It is suggested that no reference need be made to the "reasonable battered woman", since South African courts already do this to a limited extent by taking a number of factors into account in determining if the abused woman acted reasonably. By rethinking certain factors in the situation as a set of relatively innocuous normative propositions, the abused woman's actions can be judged in accordance with standard propositions in the law of self-defence. <![CDATA[<b>Recent developments in the provision of <i>pro bono</i> legal services by attorneys in South Africa</b>]]> This paper focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. In this regard there have been and continue to be considerable gaps between the proper access to civil justice imperatives of constitutional South Africa and the status quo which has existed from the advent of a democratic South Africa until the present. Law as a vehicle for necessary positive change in the daily lives of South African residents is pertinently considered within the country's woefully unequal socio-economic climate. This paper considers the role which pro bono work by private attorneys is playing and should play in promoting a more just and equitable society through proper access to justice. It explores the current position in South Africa as well as the position in selected foreign jurisdictions regarding pro bono services by attorneys in private practice in civil matters. Part of the discussion focuses on the question of whether pro bono work should be voluntary or mandatory. The merits of introducing a pro bono obligation are critically analysed by looking at the effect on both legal practitioners as well as those receiving the pro bono services. Having defined pro bono work, the practical need for pro bono work by lawyers in private practice is highlighted due to the dearth of legal aid in civil matters for indigent South Africans. Possible constitutional imperatives for the provision of free legal services in civil matters are highlighted. An important part of the paper is a reflection on some of the pro bono work being conducted by private firms of attorneys. The paper concludes with suggestions on means for establishing a more effective pro bono system in South Africa. <![CDATA[<b>Driving corporate social responsibility (CSR) through the <i>Companies Act</i></b>: <b>an overview of the role of the social and ethics committee</b>]]> The corporate social responsibility (CSR) movement can be described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend the purpose of which is to enhance the legitimacy of a business. Government is regarded as one of the most important driving forces behind the CSR agenda and it has a particularly important role to play in the creation of an enabling CSR environment. In general, advocates of legislative involvement in framing the CSR policy highlight the failure of existing voluntary systems as one of the main reasons why the state should play a more important role in the facilitation of CSR. Although governments realise the importance of encouraging socially responsible business, it should be noted that CSR should not replace regulation or legislation concerning social rights. Furthermore CSR should not be seen as shifting (or outsourcing) the state's responsibility for the provision of basic services (such as education or the provision of health services) to the private sector and thus "privatising" the state's responsibilities. However, the legacies of apartheid remain firmly entrenched in the social problems facing South Africa and it seems as if the Government is unable to deliver the social and physical infrastructure required to effect the desired transformation, thus necessitating the engagement of the private sector. The role of Government in establishing a CSR policy framework and driving CSR has become increasingly important. The (perceived) failure of the welfare state has given further impetus to the move of governments toward tapping into the resources of the private sector (through their CSR) in order to address socio-economic challenges. A purely voluntary approach to CSR without any legislative intervention will not succeed - a clear public policy requiring the implementation of socially responsible practices by the entire private sector is a necessity. Governments in general are increasingly beginning to view CSR as cost-effective means to enhance their sustainable development strategies, and as a part of their national competitiveness strategies to attract foreign direct investment. Given South Africa's history, legislation should be viewed as one of the main instruments enabling the Government to address the private sector's social, environmental and economic outreach activities. Against this background, this contribution identifies the regulations released in terms of the Companies Act 71 of 2008 in which the issue of the social and ethics committee is dealt with, as an important measure taken by Government to create a possible CSR platform. This contribution argues that the requirements regarding the creation of a social and ethics committee have the potential to embed the CSR notion in the corporate conscience. The aim of the contribution is to provide an overview of the role of the social and ethics committee, as envisaged by the Companies Regulations, 2011, as a potential driver of CSR. <![CDATA[<b>HIV/AIDS, to disclose or not to disclose</b>: <b>That is the question</b>]]> The systemic consequences of the HIV/AIDS pandemic in South Africa are evident not only in demographic, economic and social trends, but also on a micro- and personal level, where they are devastating. Those infected with HIV are often the target of intense discrimination and discriminatory behaviour including rejection, isolation and violence. It is especially because of these macro- and micro effects associated with HIV/AIDS that the highest regard should be placed on the fundamental rights of infected individuals - specifically the rights to privacy and bodily and psychological integrity - when determining if the disclosure of such persons' status is necessary and justified. The primary aim of this article is to critically consider and describe the different contexts in which the disclosure of a person's HIV/AIDS status will be relevant. The position of various role players in the economy, in the criminal justice system and in the healthcare arena will be considered with reference to relevant legislation, case law, guidelines and ethical codes. It will be clear from the discussion that no simple or single right answer exists. A patient-oriented approach sensitive to public health goals and objectives and based on human rights principles is advocated in this article. <![CDATA[<b>Reasonable and probable cause in the law of malicious prosecution</b>: <b>a review of South African and Commonwealth decisions</b>]]> The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised. <![CDATA[<b>The <i>Use of Official Languages Act</i></b>: <b>diversity affirmed?</b>]]> A full sixteen years after the coming into force of the 1996 Constitution, Parliament responded to the constitutional obligation to regulate and monitor, by legislative and other means, the use of official languages by adopting the Use of Official Languages Act 12 of 2012. The Act represents a very limited normative appreciation of this constitutional instruction. The official language clause of the Constitution expresses a normative commitment regarding the positive affirmation of linguistic diversity, which is directly informed by and closely aligned to the core normative values of the Constitution. The Constitutions positive evaluation of difference, including linguistic difference, inter alia, flows from the values of substantive equality, equal citizenship, dignity and proportionality. However, the way in which the Act institutionalises the promotion of inclusive linguistic diversity does not reflect an unambiguous recognition of this obligation being normatively embedded in the foundational value structure of the Constitution. The real responsibility for decisions regarding official language use is located in the policy-making competence of non-independent administrative bodies. The Act itself is devoid of instructive standards of its own to guide administrative decision-making regarding official language use. This results in the responsibility for making the most important normative choices regarding the use of official languages not being reserved for the legislative process, but entrusted to non-independent advisory administrative bodies. The nature of the Act confirms that it never was the intention of the government to be bound by legislation in this respect. This modus operandi is democratically deficient and compromises both the separation of powers and the principle of legal certainty as fundamental tenets of the rule of law. <![CDATA[<b>The <i>Child Justice Act</i></b>: <b>procedural sentencing issues</b>]]> In this contribution a number of procedural issues related to the sentencing of child offenders and emanating from the Chiild Justice Act 75 of 2008 are considered in some detail. As a general rule, the Act requires pre-sentence reports to be obtained from probation officers before sentencing any child offender, with only a limited number of exceptions. The article argues that the peremptory nature of the Act means that a probation report is always required, even if reports by other experts are also available. The exceptions are limited to instances other than those where the child offender is sentenced to any form of imprisonment or to residence in a care centre. The article addresses the question of whether or not the reference to imprisonment includes alternative imprisonment which is imposed only as an alternative to a fine. It suggests that alternative imprisonment should, generally, not be imposed on child offenders. When an exception is not prevented because of the sentence, a pre-sentence report may be dispensed with only when the offence is a schedule-1 offence (the least serious class of offences) or when obtaining a report would prejudice the child. It is argued that these exceptions are likely to occur rather rarely. A final aspect of the Act's provisions on pre-sentence reports is the requirement that reasons be given for a departure from the recommendations in a pre-sentence report. This requirement merely confirms the status quo. The Act permits the prosecutor to provide the court with a victim impact statement. Such a statement is defined in the Act. It is a sworn statement by a victim or someone authorised by the victim explaining the consequences to the victim of thecommission of the crime. The article also addresses the issue of whether or not the child justice court might mero motu obtain a victim impact statement when the prosecution does not do so. Finally, the article addresses appeals against and reviews of the trial courts' sentences. It notes that appeal by the child offender is made somewhat easier, as some child offenders need not obtain leave to appeal. These include children under the age of 16, or older children sentenced to imprisonment. Again, the meaning of "imprisonment" is at least somewhat ambiguous. The provisions on automatic review have attracted considerable judicial attention already. The majority of these judgments confirmed the apparently clear wording of the Act, in terms of which the cases of all child offenders under the age of 16 should be reviewed regardless of whether they were legally represented or of the sentence imposed. In the case of child offenders aged 16 or 17, only custodial sentences are reviewable. The judgments which found this to be an incorrect interpretation are dealt with in some detail, with the conclusion that they were incorrectly decided. <![CDATA[<b>A selection of constitutional perspectives on human kidney sales</b>]]> There are thousands of desperate people globally who need a kidney for transplantation. The number of people who require a kidney transplant continues to escalate faster than the number of kidneys available for a transplant. The specific focus of this article is to determine whether the payment of kidney donors could be regarded as constitutionally acceptable or not. To establish the constitutional acceptability of the reimbursement of kidney donors the following rights are analysed: the right to life, the right to human dignity, the right to self-determination, the right to privacy, and the right of access to healthcare services. Case law regarding the above is also included. After careful consideration of all of the above it is concluded that it should be regarded as constitutionally acceptable to remunerate a kidney donor for his kidney. <![CDATA[<b>The enforcement of the payment of <i>lobolo</i> and its impact on children's rights in South Africa</b>]]> Various communities in South Africa practise the custom of lobolo (payment in kind or cash by a prospective husband or the head of his family to the head of the prospective wife's family in consideration of a customary marriage). These communities may be divided into two groups, those practicing theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) and those that do not. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met.The main issue this article examines is whether the custom of thelekaimpacts on the custody of children or not. It also examines the concept of the best interests of the child and finds that theleka custom in its current form does impact on the custody of the child and conflicts with the child's best interests. The article suggests that theleka custom needs to be developed to conform to the Constitution. It also examines whether or not the custom of theleka constitutes abduction and family violence. The writer submits that it does not constitute abduction and family violence and advocates that theleka custom be allowed to continue. <![CDATA[<b>The paradox of migration and the interests of the atomistic nation-states</b>]]> The "paradox of migration and the interests of the atomistic nation-states" interrogates the phenomenon of migration in general and in the Southern African Development Community in particular. The point of departure of the paper is the African Union and the Southern African Development Community's legal framework on migration, as read with the national legal instruments of the different member states. Its focal point is the raison d'etre of this phenomenon of migration and the corresponding approaches and attitudes of the nation-states within which migration takes place inter se. This includes the psycho-social impact of migration. Internationally as well as regionally, States are concerned with issues of sovereignty, the preservation of the welfare of the citizenry, ensuring social cohesion social, cultural and economic development including job creation, and fighting against transnational organised crime, including terrorism. The theme of the paper is that whereas migration should form the bedrock of regionalism and globalisation, the negative attitudes of the nation-states to migration are more often than not at variance with the objectives of regionalism and globalisation. The central question of the research is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international as well as regional integration objectives of the free movement of people. This is the issue that the paper is intended to explore. The main areas of concern are that the negative attitudes of the nation-states are manifested in the hostile treatment of migrants at all ports of entry, including illegal or ungazetted points of entry, within the nation-states in general, and in their labour markets in particular. This research therefore explores the paradoxical nature of the duties and responsibilities of states within the migration and mobility discourse. The paper will conclude by making practical recommendations aimed at influencing policy and law. <![CDATA[<b>Protecting critical databases - towards a risk based assessment of critical information infrastructures (CIIS) in South Africa</b>]]> South Africa has made great strides towards protecting critical information infrastructures (CIIs). For example, South Africa recognises the significance of safeguarding places or areas that are essential to the national security of South Africa or the economic and social well-being of South African citizens. For this reason South Africa has established mechanisms to assist in preserving the integrity and security of CIIs. The measures provide inter alia for the identification of CIIs; the registration of the full names, address and contact details of the CII administrators (the persons who manage CIIs); the identification of the location(s) of CIIs or their component parts; and the outlining of the general descriptions of information or data stored in CIIs. It is argued that the measures to protect CIIs in South Africa are inadequate. In particular, the measures rely on a one-size-fits-all approach to identify and classify CIIs. For this reason the South African measures are likely to lead to the adoption of a paradigm that considers every infrastructure, data or database, regardless of its significance or importance, to be key or critical. <![CDATA[<b>The impact on women on the removal of gender as a rating variable in motor-vehicle insurance</b>]]> Insurers use actuarial statistics as rating variables to differentiate and distinguish for the purposes of risk classification. They justify their use of actuarial statistics due to its accuracy as a predictor of risk. South African motor-vehicle insurers use gender, inter alia, as a rating variable to classify risks into certain classes and to determine insurance premiums. Depending upon whether the insured is male or female, it could have a significant impact on the cost of his or her premium. Women drivers pay less for motor-vehicle insurance because actuarial statistics indicate that women are more careful drivers and are involved in 20 per cent fewer accidents than men. Men pay higher premiums because the statistics indicate that they are less responsible drivers than women. Should a South African court decide that the use of gender as a motor-vehicle insurance rating variable is unfair discrimination, this would benefit male drivers, as it would lower their premium. Women, on the other hand, would be disadvantaged as they would be required to pay higher premiums to subsidise men. The article examines the impact that the removal of gender as a rating variable in motor-vehicle insurance would have on women, and asks if the effects thereof would influence a South African Court's decision in determining if the use of gender as a rating variable amounts to unfair discrimination. As the Equality Act indicates that the discriminatory insurance practice of placing a disadvantage or advantage on persons based inter alia on their gender may possibly be unfair, it is suggested that South African insurers would have to consider alternative methods of risk assessment. In the light of the American and the Canadian case law, the article suggests that there should be a change of approach to insurance risk assessment. Rather than using gender as a rating variable the insurer could assess the risk of the individual insured, using appropriate, neutral rating variables suited to the particular circumstances of the insured. This would require a much more intensive and individualised risk evaluation and would require the insurer to "tailor-make" insurance for each individual. It is submitted that such an approach would give effect to the right to equality by disallowing the use of gender as a rating variable without producing the undesirable consequence that women drivers would have to subsidise men. <![CDATA[<b>The history of labour hire in Namibia</b>: <b>a lesson for South Africa</b>]]> Labour hire, the practice of hiring out employees to clients by a labour broker, has been a part of Namibia's history since the early 1900s in the form of the contract labour system. This form of employment was characterized by inhumanity and unfair labour practices. These employees were subjected to harsh working conditions, inhumane living conditions and influx control. The contract labour system continued until 1977, when it was abolished by the General Law Amendment Proclamation of 1977. It was during the 1990s that the hiring out of employees returned in the form of labour hire. It continued in this form without being regulated until it was banned in the Namibian Labour Act of 2007. In 2009 Africa Personnel Services, Namibia's largest labour broker, brought a case before the court against the Namibian Government in an attempt to have the ban nullified on grounds of unconstitutionality. It argued that the ban infringed on its right to carry on any trade or business of its choice as contained in section 21(1)j) of the Constitution of the Republic of Namibia. APS triumphed. It was not until April 2012 that new legislation was promulgated in order to officially lift the ban and to regulate labour hire in its current form. This new legislation came into force in August 2012. Various very important provisions are contained in the Labour Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment Services Act 8 of 2011, containing provisions for the regulation of labour brokers as juristic persons per se, was also introduced and came into force in September 2012. The aim of this note is to serve as a lesson to the South African government as to what could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the employees of a labour broker should be protected. In this regard the history of labour hire and the current strides in Namibia cannot be ignored.