Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> vol. 22 num. 1 lang. es <![CDATA[SciELO Logo]]> <![CDATA[<b>Re-categorising public procurement in South Africa: construction works as a special case</b>]]> Public procurement is generally known to be the acquisition of goods and services by the government from the private sector. Construction works are considered to constitute services and as such are not specifically referred to in the Constitution of the Republic of South Africa, 1996. Re-categorising public procurement may hold many advantages for the regulation of construction procurement law as a unique form of public procurement in South Africa. The definition of construction works is thus important when establishing what is procured in construction procurement. This definition in turn may indicate that the procurement of construction works is indeed a unique form of procurement and should accordingly be re-categorised in South African public procurement law. <![CDATA[<b>Proselytising the regulation of religious bodies in South Africa: suppressing religious freedom?</b>]]> In democratic pluralistic and secular societies, freedom of religion is a fundamental right to be enjoyed by all individuals and religious organisations. A unique feature of this human right is the extent to which it is premised on a personal belief. The latter can be "bizarre, illogical or irrational", but nevertheless deserving of protection in the interests of freedom of religion. However, when the expression of a religious belief or practice transgresses the civil or criminal law it must be dealt with in the relevant legislative framework to hold the transgressor liable. Measures taken by the state to regulate religious bodies in terms of a general supervisory council or umbrella body are an unreasonable and unjustifiable interference with freedom of religion, and hence unconstitutional. I am of the view that the right to freedom of religion depends for its constitutional validity - and viability - on there being no interference (or regulation) by the state except in instances as provided for in terms of relevant legislation. <![CDATA[<b>Alternatives to bankruptcy in South Africa that provides for a discharge of debts: lessons from Kenya</b>]]> The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge. <![CDATA[<b>The appointment of a proxy "at any time" in terms of Section 58 of the Companies Act 71 of 2008: <i>Richard Du Plessis Barry </i></b><i><b>ν</b><b> Clearwater Estates NPC </b></i><b>[2017] ZASCA 11</b>]]> Section 58(1) of the Companies Act 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders' meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the Companies Act 71 of 2008, namely whether this section, as read with section 58(3)(c), constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy's appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the sCa in the Richard Du Plessis Barry case in view of the appellant's contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the Richard Du Plessis Barry case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the Companies Act 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the Companies Act 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)(c), the significance of the difference in the wording of section 58(1) of the Companies Act 71 of 2008 and section 189 of the previous Companies Act 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks. <![CDATA[<b>Sexual Harassment: Why do victims so often resign?</b> <i></i><i><b>Ε</b></i><i> <b>ν</b><b> Ikwezi Municipality </b></i><b>2016 37 ILJ 1799 <i>(ECG)</i></b><b></b>]]> This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality's failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign. <![CDATA[<b>Municipal Law Making under SPLUMA: A Survey of Fifteen "First Generation" Municipal Planning By-Laws</b>]]> The legal framework for spatial planning and land use management changed with the introduction of the new Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). SPLUMA facilitates the shift of power over critical areas of land use management from provincial governments to local governments, which results from the Constitution allocating "municipal planning" to municipalities. With this comes a responsibility for municipalities to adopt municipal planning by laws. This article focuses on four of the many challenges SPLUMA needed to address namely (1) the division of responsibilities between national, provincial and local government, (2) the interrelationship between plans and rights, (3) planning and informality and (4) making government cohere. The article introduces these four challenges and examines how SPLUMA seeks to address them. In particular, it conducts a preliminary assessment of fifteen "first generation" municipal planning by-laws to assess how they address the four themes in SPLUMA. <![CDATA[<b>Promoting Public Participation in the Energy Transition: The Case of France's National Debate</b>]]> In an energy transitions era, the citizens tend to be increasingly considered as actors of the energy system. This situation reinforces in turn the importance of public participation processes into energy policy or legislation design. In 2012-2013, a significant public participation process in the field of energy policy was organised in France, named National Debate on the Energy Transition. From the beginning, it was proclaimed that its results would be integrated into a flagship energy transition act, which did happen with the adoption of the Energy Transition for Green Growth Act of 2015. This paper provides an overview of the organisation of this public debate and of the integration of its outcome into the Energy Transition Act. The experience of France can serve for other countries engaged in a process of transition towards a more sustainable society and especially towards a massive change of their energy mix. It addresses the successes as well as the failures of the French case and provides some key learning points to enhance the public participation into the Law-making process concerning the energy transition. <![CDATA[<b>A Legal Perspective on Social Media Use and Employment: Lessons for South African Educators</b>]]> In this article, the author provides a legal perspective on the interplay between social media use and employment. The unique characteristics of social media are identified in order to frame the article before a number of considerations with regard to employment relationships that impact on deciding social media misconduct cases are deliberated upon. Thereafter, the author reflects on the implications of social media transgressions for educators' professions and contemplates the forms that social media misconduct by South African educators can take, with specific focus on defamation. Before the article reaches its conclusion, social media evidence and the impact of the unique characteristics of social media on users' legitimate expectations of privacy are also considered. The article concludes with a few guidelines on how educators can avoid the pitfalls that make social media use potentially hazardous to their employment. <![CDATA[<b>Judicial Mandate in Safeguarding Environmental Rights from the Adverse Effects of Mining Activities in Zambia</b>]]> The protection of the environment from the effects of mining activities, though cardinal, has been a daunting task in Zambia. A polluted environment affects the rights of those who depend on a clean one for their survival. In remedying the pollution caused by mining activities, numerous legislative and policy frameworks have been put in place and institutions responsible for ensuring compliance operationalised. Notwithstanding such interventions, the problem of pollution emanating from mining activities has persisted. This has led individuals and spirited non-governmental organisations to bring legal actions firstly against erring mining companies for their failure to comply with environmental regulations, and secondly against the government for its failure to ensure compliance by the mining companies. The courts before whom such matters have been brought have seemingly prioritised the supposed development brought by investment in the mining sector over the environmental rights of those whose livelihood is anchored in a clean environment. The article underscores the mandate of the courts in safeguarding the environmental rights of persons whose survival is dependent on a clean environment. In doing so the article critically examines the cases which have come before the courts and how these cases have been dealt with in relation to the protection of the environment and ultimately an individual's environmental rights. <![CDATA[<b>Analysing and Comparing Warrantless Tax Inspections and Searches</b>]]> Sections 45 and 63 of the Tax Administration Act 28 of 2011 (TAA) confer drastic information gathering powers on officials of the South African Revenue Service (SARS). On the one hand, section 45 permits warrantless routine (non-targeted) and non-routine (targeted) inspections by a SARS official in respect of records, books of accounts and documents found at premises where a taxpayer is reasonably believed to be conducting a trade or enterprise. The purpose of such inspection is to determine whether there has been compliance with specific obligations by the taxpayer. Section 63, on the other hand, permits, on the grounds of urgency and expediency in exceptional circumstances only, warrantless non-routine (targeted) searches by a senior SARS official of a taxpayer and of third parties associated with a taxpayer, as well as searches of a taxpayer's premises and those of third parties. In addition, section 63 permits the seizure of relevant material found at premises searched. All searches and seizures must occur for the purposes of the efficient and effective administration of tax Acts generally. A comparative analysis of sections 45 and 63 of the TAA reveals the existence of key differences in the substance and practical operation of their provisions. This article distils these differences through an in-depth discussion of the nature and extent of the powers of inspection and search conferred by these provisions, as well as by conceptualising the terms "inspection" and "search" for the purposes of sections 45 and 63 respectively. <![CDATA[<b>The Right to Strike under the <i>Labour Relations Act </i>66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA</b>]]> The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining. <![CDATA[<b>The Value of the Persistent Objector Doctrine in International Human Rights Law</b>]]> This article critically analyses the use of the persistent objector doctrine in unilaterally challenging the validity of Sexual Orientation and Gender Identity (SOGI) rights and the related state obligations. The persistent objector doctrine gives effect to state sovereignty and provides a mechanism through which states can object to a customary norm preventing the objecting state from incurring any legal obligations once the norm has emerged. The aim of this article is to reflect on whether the persistent objector doctrine could legitimately be used to negate state obligations that would naturally follow from the crystallisation of customary norms in the area of SOGI rights. In this sense the article is both concerned with analysing (not concluding on) current state practice in terms of understanding if and how the persistent objector doctrine is applied, and with gazing forward in terms of analysing whether, if customary law emerges to protect SOGI rights, the persistent objector doctrine could in fact be applied to limit or comprehensively shield states from SOGI-related obligations. This analysis takes place within the framework of the UNHRC Resolution 32/2, which creates an Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity, and of the responses of the seven African states that provided statements before the UNHRC in the process leading up to this resolution. <![CDATA[<b>"Innovative Orders" under the South African <i>Consumer Protection Act </i>68 of 2008</b>]]> This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time". The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures". <![CDATA[<b>Challenges Surrounding the Adjudication of Women's Rights in Relation to Customary Law and Practices in Tanzania</b>]]> Women's rights litigation has produced varied outcomes in many African countries. Although courts have looked at the legislation that discriminates against women with different degrees of success, matters such as tradition and culture continue to be unpredictable when subject to lawsuit. In Tanzania, the judiciary has gradually begun to recognise that discrimination on a prescribed ground cannot be justified. However, this principle has not blocked some judges from maintaining that gender discrimination based on customary rules can still be justified, despite the existence of internal, regional and national human rights law, which prohibits it. It is contended that the judiciary has a significant role to play in ensuring that customary law and harmful traditional practices are reformed and advanced to comply with human rights legislation and ensure equality between men and women in Tanzania. <![CDATA[<b>The Search and Seizure of Digital Evidence by Forensic Investigators in South Africa</b>]]> The discipline of digital forensics requires a combination of skills, qualifications and knowledge in the area of forensic investigation, legal aspects and information technology. The uniqueness of digital evidence makes the adoption of traditional legal approaches problematic. Information technology terminology is currently used interchangeably without any regard to being unambiguous and consistent in relation to legal texts. Many of the information technology terms or concepts have not yet achieved legal recognition. The recognition and standardisation of terminology within a legal context are of the utmost importance to ensure that miscommunication does not occur. To provide clarity or guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, some of the concepts and terms are reviewed and discussed, using the Criminal Procedure Act 51 of 1977 as a point of departure. Digital evidence is often collected incorrectly and analysed ineffectively or simply overlooked due to the complexities that digital evidence poses to forensic investigators. As with any forensic science, specific regulations, guidelines, principles or procedures should be followed to meet the objectives of investigations and to ensure the accuracy and acceptance of findings. These regulations, guidelines, principles or procedures are discussed within the context of digital forensics: what processes should be followed and how these processes ensure the acceptability of digital evidence. These processes include international principles and standards such as those of the Association of Chiefs of Police Officers and the International Organisation of Standardisation. A summary is also provided of the most influential or best-recognised international (IOS) standards on digital forensics. It is concluded that the originality, reliability, integrity and admissibility of digital evidence should be maintained as follows: • Data should not be changed or altered. • Original evidence should not be directly examined. • Forensically sound duplicates should be created. • Digital forensic analyses should be performed by competent persons. • Digital forensic analyses should adhere to relevant local legal requirements. • Audit trails should exist consisting of all required documents and actions. • The chain of custody should be protected. • Processes and procedures should be proper, while recognised and accepted by the industry. If the ACPO (1997) principles and ISO/IEC 27043 and 27037 Standards are followed as a forensic framework, then digital forensic investigators should follow these standards as a legal framework. <![CDATA[<b>Gender Inequality and Land Rights: The Situation of Indigenous Women in Cameroon</b>]]> Land is an essential resource that serves as a means of subsistence for millions of people in the world and indigenous communities and women in particular. Most indigenous societies' survival is closely tied to land. In Cameroon, indigenous women are the backbone of food production in their communities. That makes access to land important, as it is a significant source of wealth and power for indigenous peoples in general and indigenous women in particular. While women all over the world encounter gender-based discrimination in relation to the control and ownership of land, indigenous women face triple discrimination on the basis of their gender (as women), their ethnicity (as indigenous peoples) and their economic class (economically poor). They are often dehumanised, degraded and subjected to treatment as second-class human beings despite the existence of national legislation that discourages such practices. This paper interrogates the possibility of including indigenous women in government and decision-making processes in Cameroon in the hope that they may be involved in key decision-making processes that affect them, thereby reducing their economic and social vulnerability. It concludes with some thoughtful recommendations on policy reform aimed at ensuring access to land for indigenous women as well as socio-economic justice in its broadest sense. <![CDATA[<b>Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the <i>Nkala </i>Judgment has on <i>Litis Contestatio</i></b>]]> The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment. <![CDATA[<b>Standing on Unsteady Ground: <i>AREVA NP Incorporatedin France v Eskom SOC LTD</i></b>]]> Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender. This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case. <![CDATA[<b>Introducing a Serpent into the Garden of Collective Bargaining: <i>A Case Analysis of </i></b><i><b>Numsa</b><b> Obo Members </b><b>ν</b><b> Elements Six Productions (Pty) Ltd </b></i><b>[2017] ZALCJHB 35 (7 February 2017)</b>]]> This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017). The jurisprudence advanced in this case is pertinent to balancing the employer and employee's rights in the context of collective bargaining. The worker's right to strike is one of the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of the South African Constitution seeks to redress the unjust laws of the past including those in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are sanctioned not only domestically but internationally as well in terms of the International Labour Conventions. This note contributes to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J. <![CDATA[<b>Lewyn </b><b>Μ</b><b> <i>Government Intervention and Suburban Sprawl: The Case for Market Urban ism </i>(Palgrave MacMillan 2017) ISBN: 978-1-349-95149-9</b>]]> The writer is of the opinion that government intervention is the probable cause of suburban sprawl in American cities. Two types of sprawl are discussed, namely, sprawl which results due to the creation of suburbs and sprawl arising from the inability to be mobile without the use of one's personal transport. The writer makes use of comparative tables and statistics to add credibility to the findings. The school system, the creation of highways, making jay-walking a crime and the legal obligation to provide huge parking lots for shopping centres are some of the unusual reasons why there has been excessive sprawl in American cities. Solutions are suggested to counter government intervention. Although the study is USA based, book could have universal appeal. However, as acknowledged by the writer, the cost that will have to be incurred, may be a barrier. <![CDATA[<b>Jacobsohn G and Schor </b><b>Μ</b><b> (eds) <i>Comparative Constitutional Theory </i>(Edward Elgar Publishing Cheltenham, UK 2018) ISBN 978 1 78471 912 8 (cased); 978 1 78471 913 5 (eBook)</b>]]> The writer is of the opinion that government intervention is the probable cause of suburban sprawl in American cities. Two types of sprawl are discussed, namely, sprawl which results due to the creation of suburbs and sprawl arising from the inability to be mobile without the use of one's personal transport. The writer makes use of comparative tables and statistics to add credibility to the findings. The school system, the creation of highways, making jay-walking a crime and the legal obligation to provide huge parking lots for shopping centres are some of the unusual reasons why there has been excessive sprawl in American cities. Solutions are suggested to counter government intervention. Although the study is USA based, book could have universal appeal. However, as acknowledged by the writer, the cost that will have to be incurred, may be a barrier. <![CDATA[<b>The Million Rand Question: Does a Civil Marriage Automatically Dissolve the Parties' Customary Marriage?</b>]]> In 2016 the Eastern Cape Local Division in Mthata heard a claim by Mrs Winnie Madikezela-Mandela that, amongst other things, her customary marriage to former President Nelson Mandela continued to exist until his death, despite the dissolution of their civil marriage. Not long thereafter, in 2017, former President Jacob Zuma's daughter made headlines by claiming half of her soon-to-be-ex-husband's multimillion-rand estate despite the couple's having entered into a valid ante-nuptial contract. The claim was that her preceding customary marriage had not been accompanied by an ante-nuptial contract, and therefore the marriage was in community of property. These high-profile cases raise the fundamental legal question: what effect does a civil marriage between parties have on the parties' customary marriage to each other? Historically the subsequent civil marriage terminated the customary marriage, as such marriages were not legally recognised in South Africa. The Recognition of Customary Marriages Act 120 of 1998 allows for such dual marriages without specifying the consequences thereof. Most commentators have interpreted the provisions to perpetuate the historical position; the civil marriage terminates the customary marriage. While this appears distasteful, the rationale is legal certainty and accords with the recommendations of the South African Law Commission. Furthermore, alternative customary dispute resolution mechanisms are still available to the parties, who are unlikely to suffer prejudice under the interpretation. In addition, given the social reality in which dual marriages are conducted and how they are perceived by parties, parties should be allowed to conclude an ante-nuptial contract after their customary marriage but before their civil marriage to regulate the proprietary consequences of their marriage. <![CDATA[<b>Beyond the <i>Contours of Normally </i>Acceptable Political Violence: Is Cameroon a Conflict/Transitional Society in the Offing?</b>]]> Legal scholars and other social scientists agree that political violence comprising assaults on civil and political liberties may occur in the context of contentious politics. Unfortunately, there have been instances in history where such politics is marked by intermittent attacks against people's rights and freedoms. Such attacks occur when politics has gone sour, and there are times when the violence exceeds the bounds of what is acceptable. From the documented atrocities of Nazi Germany, the horrendous crimes of the regime of Slobodan Milosevic in the former Yugoslavia, the outrageous crimes perpetrated during the genocide in Rwanda, the shameful and despicable inhumanities inflicted on the people of Darfur in the Sudan, and the violence in post-electoral Kenya, to the bloodshed in areas like Mali, the Democratic Republic of the Congo, the Central African Republic, etc, violent conflict has punctuated world history. Added to this list of countries is Cameroon, which in the last quarter of 2016 degenerated into a hotspot of political violence in the English-speaking regions. The perpetration of political violence in Cameroon has raised serious questions that may be relevant not only to the resolution of the political problem that gave rise to the violence but also to laying the foundations of a post-conflict Cameroon that is united and honours the principles of truth, justice and reconciliation. This paper describes some of the salient occurrences of political violence in Cameroon and argues that the presence of specific elements elevates this violence to the level of a serious crime in international law. It is argued herein that crimes against humanity may have been committed during the state action against the Anglophones in Cameroon. It is also argued that the political character of the violence, added to the scale of the victimisation and its systematic and protracted nature, qualify Cameroon as a transitional society engaged in conflict that is in need of transitional justice. Reflecting on the extent of the suffering of the victims of such political violence, this paper discusses the function of the justice system in establishing the truth and holding the perpetrators accountable. Past instances of political violence in Cameroon have been glossed over, but in our opinion, healing a fragmented and disunited Cameroon with its history of grave violations of human rights requires that the perpetrators be held accountable, and that truth and justice should prevail. Such considerations should be factored into the legal and political architecture of a post-conflict, transitional Cameroon. <![CDATA[<b>The Ratification of Inadequate Surrogate Motherhood Agreements and the Best Interest of the Child</b>]]> South Africa has developed domestic legislation governing all surrogacy matters within the country. These provisions are contained in Chapter 19 of the Children's Act 38 of 2005. In Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP), the commissioning parents did not adhere to the requirement provided by Chapter 19. The parties to the (initially informal) surrogacy agreement authorised the artificial fertilisation of the surrogate mother prior to the confirmation of the surrogate motherhood agreement by the court. In considering the best interest of the resultant child, the High Court decided to ratify the inadequate surrogate motherhood agreement. This discussion aims to establish whether the court's judgement in Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement was in accordance with the provisions of current legislation and case law. It furthermore aims to answer two primary questions: firstly, whether adjudicators should make use of the best interest of the child when ratifying inadequate surrogate motherhood agreements; and secondly, in what manner the court should go about implementing the best interest of the child when validating inadequate surrogate motherhood agreements. It is submitted that courts should refrain from applying the best interest of the child as a constitutional right in inadequate surrogacy matters where the child is yet to be born alive, in accordance with the Digesta Texts. Parties to the invalid agreement should rather be instructed to make use of a section 22 parental responsibilities and rights agreement, a section 28 termination agreement, or adoption as provided for by chapter 15 of the Children's Act. <![CDATA[<b>The Constitutional Protection Afforded to Child Victims and Child Witnesses while Testifying in Criminal Proceedings in South Africa</b>]]> The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime, and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. In this regard the general constitutional rights in the Bill of Rights relating to child victims and witnesses as well as the specific constitutional rights of child victims and witnesses in section 28 of the Constitution are discussed. <![CDATA[<b>The Constitutionality of the Prohibition of Hate Speech in terms of Section 10(1) of the <i>Equality Act: </i>A Reply to Botha and Govindjee</b>]]> This is a reply to a critique by Botha and Govindjee (2017 PELJ 1-32) of our interpretation of the hate speech provisions of the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) in Marais and Pretorius (2015 PELJ 901-942), in which we considered the constitutionality of section 10(1) of the Act, amongst other things. We address Botha and Govindjees' rejection of our view that hate speech is a form of unfair discrimination and that the most appropriate constitutional framework within which section 10(1) should be interpreted and assessed is sections 9 and 10 of the Constitution. We consider Botha and Govindjees' rejection of this point of departure, their opposing different interpretation of the role of the proviso in section 12 of the Act and, generally, their reasons for concluding that section 10(1) is unconstitutional. We maintain that Botha and Govindjee's proposals for reform unduly restrict the hate speech prohibition to cover exclusively expression that warrants criminalisation. In doing so, they fail to fully acknowledge the transformative obligation in terms of international law, the Constitution and the Equality Act, to prohibit and prevent unfair discrimination. <![CDATA[<b>The Constitutional Rules of Succession to the Institution of Monarch in Lesotho</b>]]> The rules that govern succession to the office of King in Lesotho are largely customary. The Constitution of Lesotho, 1993 provides that succession to the office of King shall be regulated in terms of customary law; the Constitution itself does not provide for the substantive and procedural rules governing succession. The zenith of customary rules is that succession to kingship in Lesotho is based on the principle of primogeniture. The primogeniture rule has always presented problems of application in Lesotho; more so in the era of equality and democracy. This paper critiques the rules of succession to the office of King. It contends that by leaving the regulation of succession exclusively to customary law without clear articulation in the Constitution, the Constitution is unduly yielding to a system of law (customary law) which is not only subservient to the Constitution but also based on a different set of values. The paper recommends that the rules of succession must be codified in the Constitution and must be realigned with contemporary notions of constitutionalism and equality. <![CDATA[<b>An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers</b>]]> This article critically analyses the Draft Rules to the Public Protector Act 23 of 1994 and examines the efficacy of the Public Protector's decision-making procedural powers. Several procedural lacunae are identified. In particular the article evaluates the procedural distinction between an investigation and a hearing as defined in the Draft Rules and the Act. It is unclear from a reading of the Draft Rules whether a hearing is simply part of the Public Protector's investigatory process or whether it functions as a separate quasi-judicial decision-making process in its own right. A significant lacuna is the failure to specify the procedural protections available to an implicated person or a witness in an investigation or a hearing. A primary problem with the Draft Rules is the very broad procedural powers awarded to the Public Protector, which are open to procedural abuse. The article suggests a number of amendments to the Draft Rules, which should be modelled on the procedural methodology applied in the Special Investigating Units and Special Tribunals Act 74 of 1996. Moreover, the article suggests that the decision-making powers of the Public Protector should be divided between the Public Protector and an independent and temporarily appointed adjudicator. <![CDATA[<b>Damages Arising from Contraventions of <i>Competition Act </i>89 of 1998</b>]]> Persons who have suffered loss or damage as a result of a prohibited practice in terms of the Competition Act 89 of 1998 (the Act) have the right to recover such damage in the civil courts. This right is expressly provided for in section 65 of the Act. To date South Africa has failed to usher in an efficient and effective environment for section 65 civil damages actions, despite growing success being achieved by the competition authorities in uncovering and prosecuting firms for contraventions of the Act, including prohibited practices. Understanding how section 65 rights might be vindicated and whether South Africa's damages regime is adequate to deal with potentially complex damages actions within the realm of competition law contraventions, a starting point would be to gain certainty as to the classification of the nature of section 65 damages. This article seeks to evaluate the arguments of whether these damages actions should be properly classified as statutory or delictual actions by the South African civil courts. <![CDATA[<b>The Application of International Human Rights Instruments in Outer Space Settlements: Today's Science Fiction, Tomorrow's Reality</b>]]> The military and commercial exploitation of outer space has received increasing international attention since the United States of America announced its intention to establish an outer space military force to protect its interests in outer space. Simultaneously, the National Aeronautics and Space Administration (NASA) and private enterprises such as Blue Origin and SpaceX declared plans to colonise the Moon and/or Mars in the near future. While technology is advancing rapidly to make these objectives a reality, the international legal rules related to these developments are completely uncertain, and in some instances non-existent. It is evident that these developments may have a direct impact on the internationally protected human rights of individuals, taking into account the extremely adverse conditions in outer space and the dangers involved in creating sustainable human living conditions in outer space. International discussion of and action on these legal issues are needed urgently. As a starting point, this contribution discusses the question of whether existing international human rights instruments enjoy extra-territorial application in outer space, given the current status of outer space law. In answering the question, a broad overview is presented of some human rights issues that may be relevant to living in outer space, and the role that the doctrine of effective control may play in this regard is analysed. <![CDATA[<b>Tagging and Tracking of Persons with Albinism: A Reflection of Some Critical Human Rights and Ethical Issues Arising from the Use of the Global Positioning System (GPS) as Part of a Solution to Cracking Down on Violent Crimes Against Persons with Albinism</b>]]> Recent years have seen an increase in the use of the Global Positioning System (GPS) by both private and public entities for the purpose of tracking and monitoring the location of human beings. The GPS tracking application is used as a locating system to monitor, among other people, children, the elderly who suffer from Alzheimer's, and the mentally ill, for personal protection purposes. This electronic monitoring system has also found application on parolees as a law enforcement measure. In trying to track down a tangible solution to prevent and mitigate brutal attacks on persons with albinism in South Africa, this article proposes the extension of the application of the use of the Global Positioning Tracking System to persons with albinism as a strategy to halt the continued attacks against this population. Although Malawi has pioneered the use of the GPS in the context of fighting violent crimes against persons with albinism, what is unsettling to the author is the fact that no debates have taken place on the ethical and legal concerns arising from electronically tagging and tracking people with albinism; especially in view of the fact that persons with albinism are already a vulnerable and stigmatised population. Could it be that ethical issues and human rights are to be ignored when it is affirmed that technology serves the common good of protecting persons with albinism? My emphasis here is on the need for a debate on what could otherwise be a controversial application of technology. Although the purpose of the GPS is undeniably worthy, sometimes the way these devices are used can be more problematic. More challenging is the desire to justify the encroachment of any rights, as arises through using this crime prevention strategy. The use of the electronic monitoring system to tag and track persons with albinism raises crucial human rights and ethical concerns, particularly relating to the right to privacy, liberty, perhaps equality, and notably, the right to dignity. There is a need to be conscious of the possibility of the misuse of the technology and precautionary measures must be put in place. This article therefore discusses the ethical and legal issues which could arise from the electronic tagging and tracking of persons with albinism. <![CDATA[<b>Medical Certificates in terms of the Traditional Health Practitioners Act: The Issue of Validity and Reliability</b>]]> On 1 May 2014, various provisions of the Traditional Health Practitioners Act 22 of 2007, came into effect. This resulted in the establishment of the Interim Council for Traditional Health Practitioners with the accompanying requirement that traditional healers must register with the council in order to practice lawfully in South Africa. Due to this development, a registered traditional healer is now included in the provisions of section 23 of the Basic Conditions of Employment Act 75 of 1997 for the purposes of issuing a valid medical certificate. Section 23(2) of the Basic Conditions of Employment Act states that a valid medical certificate for the purposes of sick leave must be issued and signed by a medical practitioner or any other person registered with a professional council and qualified to diagnose and treat patients. This stipulation raises several issues in relation to traditional healers. The requirement is that the person concerned must be qualified to diagnose and treat a person, but whether traditional healers qualify in this context is a bone of contention. It seems that the statutory provisions on the standards of training and the qualifications required for purposes of registration in terms of the Traditional Health Practitioners Act are lacking. This creates doubt about whether only fully-fledged traditional healers are registered in terms of the Traditional Health Practitioners Act and whether a registered traditional healer is competent to make a reliable diagnosis for purposes of sick leave. This means that employers remain uncertain about the reliability of a traditional healer's diagnosis and the incapacity of the employee. <![CDATA[<b>Property and "Human Flourishing": A Reassessment in the Housing Framework</b>]]> In South Africa, land/housing is a finite non-shareable type of property that must yield to stringent constitutional control to meet land reform and housing objectives, which is high on our constitutional agenda to redress injustices of the past and allow the previously dispossessed to take their rightful place in society. This article considers the normative framework that underlies the types of property that must be regulated for the purposes of section 25 of the Constitution of the Republic of South Africa, 1996, since very few cases have been decided in such a way as to consider, from a normative perspective when land/housing should be subject to greater governmental control and when not. Even in the context of expropriation without compensation, certain types of land/buildings are being flagged for this purpose, but the normative reasons for such propositions remain unclear. The purpose of this article is to offer a theoretical perspective, based on work done by progressive-property scholars, on the normative foundation of some property rights, with the object of initiating a dialogue concerning whether or not such rights should be regulated. The notion of human flourishing, as developed by Alexander, should arguably be essential in determining whether land/housing rights should be subject to greater constitutional scrutiny; the more property contributes to the individual's autonomy and ability to partake in social relations, the more sceptical we should be of severe governmental interference; whereas the lesser the notion of human flourishing appears, the greater governmental interference should be. An approach of this kind adheres to the systemic purpose of section 25 of the Constitution, because the property clause is intended to regulate established rights just as much as it is intended to meet certain societal needs. <![CDATA[<b>The South African Class Action Mechanism: Comparing the Opt-In Regime to the Opt-Out Regime</b>]]> In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder - they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation. The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims. The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice. The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law. The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime. <![CDATA[<b>Notes on the Proposed Amendment of Section 21 of the <i>Children's Act </i>38 of 2005</b>]]> In terms of section 21 of the Children's Act 38 of 2005, an unmarried father acquires full parental responsibilities and rights in respect of his child if he lives with the child's mother in a permanent life-partnership when the child is born. He also acquires full parental responsibilities and rights if, regardless of whether or not he has ever lived with the child's mother, he consents or successfully applies to be identified as the child's father or pays damages in terms of customary law, and contributes or attempts in good faith to contribute to the child's upbringing and maintenance for a reasonable period. Several provisions of section 21 are unclear and/or unsatisfactory. The draft Children's Amendment Bill, 2018 seeks to address problematic aspects of the section. Unfortunately, the proposed amendments to section 21 leave one disappointed. Although some of the amendments are welcome, the draft Bill fails to address several of the uncertainties flowing from the current wording of section 21 and even creates additional uncertainties. The wording of many of the amendments has not been properly thought through, and the draft Bill fails to address the key question of whether the requirements in section 21(1)(b) operate conjunctively or independently. <![CDATA[<b>The Appointment of a Proxy "At Any Time" in Terms of Section 58 of the Companies Act 71 of 2008</b><b>: </b><b><i>Richard Du Plessis Barry</i></b> <i><b>ν</b><b> Clearwater Estates NPC</b></i>]]> Section 58(1) of the Companies Act 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders' meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the Companies Act 71 of 2008, namely whether this section, as read with section 58(3)(c), constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy's appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the SCA in the Richard Du Plessis Barry case in view of the appellant's contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the Richard Du Plessis Barry case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the Companies Act 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the Companies Act 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)(c), the significance of the difference in the wording of section 58(1) of the Companies Act 71 of 2008 and section 189 of the previous Companies Act 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks. <![CDATA[<b>Sexual Harassment</b><b>: </b><b>Why do Victims so often Resign?</b><i><b> </b><b>E v Ikwezi Municipality </b></i><b>2016 37 ILJ 1799 <i>(ECG)</i></b>]]> This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality's failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign. <![CDATA[<b>The Right to be Granted Access Over the Property of Others in Order to Enter Prospecting or Mining Areas</b><b>: Revisiting <i>Joubert </i></b><i><b>ν</b><b> Maranda Mining Company (Pty) Ltd </b></i><b>2009 4 All SA127 (SCA)</b>]]> A new mineral law regime was introduced when the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) commenced. Common law mineral rights were abolished and replaced by statutorily created rights to minerals. Prospecting rights and mining rights granted in terms of the MPRDA entitle their holders, amongst other things, to enter the designated prospecting or mining area in order to commence with and conduct prospecting or mining activities. This contribution focusses on the question whether the entitlement to "enter" the land to which a specific prospecting or mining right relates automatically includes the ancillary right to be granted access over the property of others in order to enter the designated prospecting or mining area. It is important to determine the source or origin of the right to access in the new regime and to differentiate between "access" and "entry". It would not be just or justifiable summarily to accept that legal principles that developed under a completely different regime apply unchanged in a new regime. <![CDATA[<b>Public Participation in African Constitutionalism</b>]]> This review explores why public participation in constitution-making matters for cultivating responsible governance and for fine-tuning justice, focused on immensely rich African evidence within a broader comparative constitutional law context. <![CDATA[<b>Director's Duty to Act for a Proper Purpose in the Context of Distribution under the <i>Companies Act </i>71 of 2008</b>]]> This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense. <![CDATA[<b>The Protection of Conscientious Objection against Euthanasia in Health Care</b>]]> In 2015 the South African judiciary was confronted with the issue of the so-called "right to die", when Robin Stransham-Ford applied to the High Court of South Africa (the North Gauteng Division) for an order to have his life terminated. Although the Supreme Court of Appeal set aside the order (on procedural grounds), the High Court's judgment paved the way towards renewed attention regarding the possible legalisation of euthanasia. A pertinent question arising from this is whether a medical practitioner may be compelled to participate in the administering of euthanasia. Bearing this in mind, this article argues for the protection of the rights of medical practitioners who conscientiously object to participating in the administering of euthanasia, especially where such an objection is based on religious beliefs. From this arises the necessity to investigate the rights applicable both to the medical practitioner and the patient (which focusses on the right to freedom of religion and personal autonomy), the weighing up against one another of the different meanings ascribed to such rights, as well as the postulation of a substantively competitive rationale against the background of the importance and sacredness of human life. This also overlaps with the importance of the endeavour towards higher levels of religious freedoms and consequently of plurality in democratic societies. Applying the proportionality test in the analysis whether a medical practitioner's rights may be reasonably and justifiably limited against the background of administering euthanasia also strengthens the argument for the protection of the medical practitioner's right to object conscientiously to the administering of euthanasia. This, together with the vacuum there is in substantive human rights jurisprudence related to this topic, suggests the importance of this article both for the South African context and beyond. <![CDATA[<b>The Influence of Reasonableness on the Element of Conduct in Delictual or Tort Liability - Comparative Conclusions</b>]]> In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict. Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts. Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit. <![CDATA[<b>The <i>Prevention of Organised Crime Act </i>1998: The Need for Extraterritorial Jurisdiction to Prosecute the Higher Echelons of Those Involved in Rhino Poaching</b>]]> The continuous rising levels of rhino poaching in South Africa require smart strategies that move beyond prosecuting the actual poachers to engaging the transnational criminals who deal with the rhino horn after it leaves the country. In this regard, South Africa has a number of laws that deal with the poaching of rhino horns. The Prevention of Organised Crime Act 121 of 1998 (POCA) does not provide for the adequate prosecution of offenders outside South Africa. It is argued that the POCA has to be amended to provide for extraterritorial jurisdiction to deal with the prosecution of the higher echelons of those involved in rhino poaching. While the POCA provides for extraterritorial jurisdiction in some respects, the application of these provisions still presents challenges in their implementation. To substantiate this claim, this article first discusses the international networks that support the trade in rhino horn. A critique of the available statistics on rhino poaching follows, as does a suggestion that attention must be paid to the details in the statistical records to understand how desperate the situation is. Thereafter, an evaluation of South Africa's legislative framework and other interlinking factors that affect rhino poaching is performed This demonstrates the need for extraterritorial jurisdiction with regard to rhino poaching. <![CDATA[<b>An Overview of Fixed-Term Contracts of Employment as a Form of A-typical Employment in South Africa</b>]]> A fixed-term employment contract is an example of atypical or non-standard employment. Fixed-term appointments can have many benefits when utilised for proper and lawful reasons. These contracts are frequently abused, however, by unscrupulous employers and are generally regarded as providing less security to employees than permanent employment. The article considers the general use of fixed-term contracts and addresses selected issues pertaining to the 2014 amendments to the Labour Relations Act 66 of 1995 in as far as these contracts are concerned. The article also considers the potential effect these amendments might have on common historic problems associated with fixed-term contracts and highlights certain unresolved problem areas and uncertainties. <![CDATA[<b>Deciphering Dangerousness: A Critical Analysis of Section 286A and B of the <i>Criminal Procedure Act </i>51 of 1977</b>]]> The violent nature of some crimes and the high crime rate in South Africa reflect the fact that some offenders constitute a real threat to the security of communities. It is understandable, therefore, that the state seeks to protect its citizens through preventive measures. Although South Africa has certain legal provisions on its statutory books, it seems that the declaration of persons as dangerous criminals is under-utilised. South African legislation dealing with the declaration of dangerous criminals can be improved by borrowing some traits of the Canadian legislation. Such features include the restriction of courts' discretion and the provision of concrete and more detailed guidelines on the nature of the offences for which the provision can be applied. The courts could also take into account the type of criminal history of the offender which would merit the declaration of a dangerous criminal. It is also important that the extent of the violence in an offence should be thoroughly defined in court. Courts need to balance their wide discretion on the matter with the provisions in the Act in order to protect the community against dangerous criminals. <![CDATA[<b>Judicial Review of the Legislative Process in Lesotho: Lessons from South Africa</b>]]> The Constitution of Lesotho, 1993 has a supremacy clause which ordinarily empowers the judiciary to review the actions of other branches of government. However, the judiciary in Lesotho seems to treat the legislative process with deference. This deference seems to be based on the old common law notion of the non-intervention of the judiciary in the legislative process. The notion has its roots in the British constitutional system. The Constitution of Lesotho has even protected this doctrine through a constitutional ouster clause in section 80(5). The main question which this paper seeks to answer is whether indeed the common law notion of non-intervention in the legislative process is part of the constitutional law of Lesotho. In the end, the paper uses South African jurisprudence on the review of the legislative process to make a case that Lesotho can use the supremacy clause in the constitution and other constitutional doctrines such as the rule of law and legality to break with the common law notion of non-interventionism. <![CDATA[<b>Legal Pluralism, <i>uBuntu </i>and the Use of Open Norms in the South African Common Law of Contract</b>]]> In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the Romans realised that their existing formal and rigid laws could not address the changing legal needs of the community due to the influx of foreigners (especially foreign traders) into Rome. In reaction to the changing commercial environment, they introduced flexible legal procedures and a more normative approach to these legal transactions to achieve fairness and justice between the contracting parties. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It is argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system, and its application as an underlying constitutional value could result in the better use of the open norm of good faith to address contractual unfairness. <![CDATA[<b>Harmonising Legal Values and <i>uBuntu: </i>The Quest for Social Justice in the South African Common Law of Contract</b>]]> In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy and it is argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in similar fashion. Secondly, an important distinction between the two concepts is identified. Although both concepts promote contractual justice between the contracting parties, ubuntu entails a further duty to promote the social and economic well-being of the parties as well as that of the greater community. Hence, in contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings. <![CDATA[<b>Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations</b>]]> The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts. This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms. Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism. While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern. <![CDATA[<b>Progressive Realisation of Muslim Family Law: The Case of Tunisia</b>]]> From the time when women's rights were not placed high on the agenda of any state to the time when women's rights are given top priority, Tunisia's gender-friendly legislation requires a fresher look. One would be forgiven for thinking that Tunisia's reforms started after they gained independence from France in the 1950's. In fact, it was during the French Protectorate that reformers started rumours of reform, arguing amongst other issues for affording women more rights than those they were granted under sharia law, which governed family law in Tunisia. After gaining its independence, Tunisia promulgated the Code of Personal Status, which was considered a radical departure from the sharia. It is considered to be the first women-friendly legislation promulgated in the country. It could be argued that Tunisian family law underwent, four waves of reform. The first wave started during the French Protectorate. The second wave started in the 1950's with the codification of Tunisia's family law, which introduced women-friendly legislation. The third wave started in the 1990's with changes to the Code of Personal Status, and the latest wave commenced in 2010. In this article, I analyse the initial, pioneering phases of the reforms resulting from the actions of a newly formed national state interested in building a free society at the end of colonial rule, as well as reforms that have taken place in the modern state since the Arab uprising in Tunisia. As a result of the various waves of reforms, I argue that Tunisia should be seen as the vanguard of women-friendly legislation in the Arab world. <![CDATA[<b><i>Prêt-à-Porter </i>Procreation: Contemplating the Ban on Preimplantation Sex Selection</b>]]> Preimplantation genetic testing makes it possible to genetically test in vitro embryos for the presence of genetic disease. It also identifies the sex of the embryo. Preimplantation sex selection is prohibited in a number of jurisdictions, including South Africa. Sex selection may be considered to be included in the ambit of the right to reproductive autonomy under the Constitution of the Republic of South Africa, 1996. An analysis of international human rights law supports such a view, and a comparison with foreign law suggests that South Africa should be wary of adopting blanket prohibitions without considering their context. The analysis demonstrates that a prohibition of preimplantation sex selection may have no place in South African law. <![CDATA[<b>The Effectiveness of Plea and Sentence Agreements in Environmental Enforcement in South Africa</b>]]> A recent development in South African environmental law is the use of plea and sentencing agreements. The main objective of environmental law is to promote the sustainable use of natural resources while preventing pollution and ecological degradation. Grand environmental due diligence processes could achieve sustainable development; the use of criminal sanctions with sentencing agreements could be more effective. This paper answers the question whether the plea and sentencing agreements in reality achieve the objectives of environmental regulation? This study analyses this recent development by looking at selected recent cases in South Africa. The study found that plea and sentence agreements are potentially effective, subject to the effective monitoring of compliance and enforcement against non-compliance with the undertakings made by the accused person. Without institutional strengthening and effective monitoring, the plea and sentence agreement procedure remains ineffective. <![CDATA[<b>The Price of Sadness: Comparison between the Netherlands and South Africa</b>]]> Bereavement can be a precipitating and perpetuating factor for various psychiatric injuries. However, the normal experience of bereavement also causes significant disruption and stress in an individual's psychosocial functioning. Both in the Netherlands and in South Africa, a clear distinction is drawn between sadness and psychiatric injury. Dutch law until recently did not make provsion for compensation for sadness, but only for psychiatric injury. This has changed with the coming into operation of the Wet Affectieschade on 1 January 2019. In terms of South African law, there is no claim for compensation for sadness or bereavement. The authors are of the opinion that bereavement, sadness or grief resulting from bereavement causes significant distress and a continuum exists between normal and complex bereavement where a clear distinction does not exist. South African courts should, therefore, bear this is mind in actions for compensation for non-patrimonial loss for bereavement. <![CDATA[<b>The Suspension and Setting Aside of Delinquency and Probation Orders under the <i>Companies Act </i>71 of 2008</b>]]> A significant innovation of the Companies Act 71 of 2008 is contained in section 162. This provision empowers a court to declare a director delinquent or under probation on various grounds. The effect of a delinquency order is that a person is disqualified from being a director of a company, while being placed under probation means that he or she may not serve as a director except to the extent permitted by the order. A delinquency order may be unconditional and subsist for the director's lifetime, or it may be conditional and be effective for seven years or longer, as determined by the court. A probation order generally subsists for a period not exceeding five years, and may be subject to such conditions as the court considers appropriate. The harsh effects of these orders are alleviated by section 162(11) of the Companies Act. Under this provision, a delinquent director may apply to court after three years have elapsed, to suspend the delinquency order and to substitute it with a probation order, with or without conditions. A person who was placed under a probation order may apply to court after two years for the probation order to be set aside. This article examines the procedure under section 162(11) of the Companies Act for the suspension and setting aside of delinquency and probation orders. The factors that a court must take into account in exercising its discretion whether or not to grant the application, as set out in section 162(12) of the Companies Act, are also examined. This article draws on relevant jurisprudence as decided on the equivalent provisions in the corporate legislation in the United Kingdom and Australia. The method of interpretation used in these jurisdictions provides useful guidance on how best to apply and interpret sections 162(11) and (12) of the Companies Act. Recommendations are made regarding the proper approach to interpreting, applying and enhancing sections 162(11) and (12) of the Companies Act. <![CDATA[<b>Curriculum Decolonisation and Revisionist Pedagogy of African Customary Law</b>]]> Fees-related protests in South African universities have pushed the decolonisation of the law curriculum to the front burner of academic discourse. As part of the curriculum, African customary law was marginalised in the courts, distorted by policy makers, and largely labelled as unfriendly to women and younger male children in issues of marriage, property, and succession. However, this normative system is shaped by the manner in which people adapt norms with agrarian origins to the socio-economic changes caused by colonial rule. In this historical context, scholars focus more on conflict of laws than on people's adaptation of indigenous norms to socioeconomic changes. So, in what ways should universities handle the pedagogy of African customary law? This article argues that colonialism endowed Africans with a new socio-legal identity, which questions the mainstream conceptualisation of customary law into "official" and "living" versions. Accordingly, the law curriculum should reflect this new identity and acknowledge the self-sustaining legacy of colonialism as a reality check on decolonisation. As the article suggests, re-conceptualising African customary law offers a framework for legal integration, especially in South Africa. <![CDATA[<b>The Application and Interpretation by South African Courts of General <i>Renvoi </i>Clauses in South African Double Taxation Agreements</b>]]> General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context otherwise requires". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made. <![CDATA[<b>Examining the <i>Land Use Act </i>of 1978 and Its Effects on Tenure Security in Nigeria: A Case Study of Ekiti State, Nigeria</b>]]> The Land Use Act of 1978 (LUA) has failed to achieve some of its objectives. The rural poor and the vulnerable are those most affected. The failure is ascribed to problems inherent in the Act and poor implementation. This paper discusses the effect of the LUA on the customary ownership of land and its effect on the tenure security of the rural poor. Using a conceptual framework for guiding cadastral systems development, the critical areas of the LUA as pertains to tenure security are analysed for the degree of their success, sustainability, and significance. The framework looks at the underlying theory, the drivers of change, the change process, and the land administration system. A mixed methodology approach was adopted for the study, using a single case study. Three groups of respondents contributed to the study: land professionals, civil servants and students. The study found that securing title to land is difficult, compensation provisions need to be reviewed, formal land registration is not in the interest of the poor, land is not available at an affordable rate, land speculators are still active in Nigerian land markets, the composition of the two committees is inadequate, and the refusal to grant certificates to people below the age of 21 is age biased. It further revealed that the power granted to the governor is enormous and unnecessary. The findings showed that the LUA is both effective in some areas and dysfunctional in others. This is because of the age of the Act and the lack of a pro-poor policy focus. Based on these findings recommendations were made, including that a new policy be enacted that includes pro-poor policies and customary laws. The LUA is found to be useful in urban areas, but not in solving land-related problems in rural areas. This study provides an understanding of the legal holding of land in Nigeria. <![CDATA[<b>Unintentionally Trapped by Debt Review: Procedural Inadequacies in the <i>National Credit Act </i>34 of 2005 Relating to Withdrawal from the Debt Review Process</b>]]> The debt review procedure in terms of the National Credit Act 34 of 2005 is functioning relatively well and benefits both consumers and credit providers. This is despite its somewhat scarce procedural prescriptions, which result in difficulties from time to time. In this respect, a recent procedural challenge has appeared, namely that of consumers who voluntary enter the debt procedure, but who later want to withdraw therefrom - thus, before the procedure has reached its ordinary conclusion, on the basis that their financial situation has improved to the extent that they are no longer over-indebted. The fact that the National Credit Act does not provide for such an exit has led to procedural uncertainty and diverging court decisions. In this article, the relevant legislative provisions (or lack thereof), court and National Consumer Tribunal judgements, regulations, forms, guidelines and explanatory notes are considered to determine whether it is competent for consumers to withdraw from the debt review procedure before it has reached its normal conclusion. Not only provisions in the National Credit Act are considered, but also general civil procedure to contemplate all possibilities in searching for an answer to this procedural difficulty. <![CDATA[<b>Prescription of Debt in the Consumer-Credit Industry</b>]]> A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between a debtor and a creditor, with the focus on protecting a debtor (consumer) against the unfairness of having to defend old claims. Old claims are therefore after the elapsing of specific time periods extinguished through prescription. A debtor must then specifically raise prescription as a defence against claims from creditors based on prescribed debts. The prescription of consumer debts is regulated by the National Credit Act 34 of 2005 (when the credit agreement falls under the NCA) and the Prescription Act 68 of 1969. The Prescription Act generally regulates all aspects of the prescription, which would also include consumer debts, while section 126B of the National Credit Act regulates and prohibits certain practices related to prescription, such as the selling of prescribed consumer debts or the continued collection or reactivation of prescribed consumer debts. In this article several practical aspects related to prescription and the National Credit Act are discussed, such as the impact of non-compliance with section 96 and section 129(1)(a) of the NCA on prescription. Section 126B is specifically analysed, and the question whether section 126B absolutely prohibits certain abusive practices related to the prescription of consumer debts is answered. Several shortcomings of the current legislation are also pointed out. In this article some aspects of the draft Prescription Bill proposed by the South African Law Reform Commission are also considered. In particular, we focus on the impact the Bill may have on the consumer-credit industry. <![CDATA[<b>Editorial: Special Edition Legal Interpretation after <i>Endumeni: </i>Clarification, Contestation, Application</b>]]> This special edition consists of a selection of contributions delivered during a conference "Towards an integrated approach to the interpretation of legal documents: contracts, wills and statutes", hosted by the University of the Western Cape, on 23 March 2018. The aim of the conference was to take stock of the state of legal interpretation in South Africa five years after the watershed judgment in Joint Natal Municipal Pension Fund v Endumeni Municipality. The papers in the special edition provide clarifications, contestations and applications of the Edumeni approach to the interpretation of legal documents. <![CDATA[<b>The Life and Times of Textualism in South Africa</b>]]> This paper analyses the dominant approaches to statutory interpretation through a historical lens. It argues that for most of South Africa's history the methods of interpretation were twisted in order to give effect to the intentions of the legislature. This approach to interpretation has now been discarded into the waste bin of history, and intentionalism has been replaced with contextualism. Or so we are told. The judgment of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) has been hailed as the new, settled approach to interpretation, with the Constitutional Court endorsing Endumeni on numerous occasions. But it appears from both the judgments of the Constitutional Court and those of other Courts that intentionalism is not yet dead. This paper argues that the reason for this is because Endumeni has not provided clarityto the process of interpretation that it proclaims to do. <![CDATA[<b>Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the <i>Companies Act71 </i>of 2008</b>]]> Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evdence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisation and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provsions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context. <![CDATA[<b>Interpretation Before and After <i>Natal Joint Municipal Pension Fund v Endumeni Municipality </i>2012 4 SA 593 (SCA)</b>]]> This article explores the background to the decision in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA), some of its conceptual content and its broader implications for future jurisprudence in regard to the interpretation of documents. It illustrates the reality that in the past interpretation in different areas of the law was undertaken in accordance with differing standards even though all areas involved the interpretation of language in common everyday use, and questions the need to approach issues of interpretation in a way different from that used in conventional language. The internal inconsistencies of past authority are highlighted, as well as the trend in South African jurisprudence and overseas towards a single, simple and coherent approach to interpretation. The importance of recognising the role of both text and context is stressed, and the identification of relevant context in interpreting contracts and statutes is addressed. The article identifies two animating principles underlying the approach to interpretation in Endumeni, viz.: the discipline it imposes on judges to explain their decisions in regard to interpretation rather than starting with an a priori meaning and buttressing it with authority, and the desirability of a single, clear and simple standard by which to approach issues of interpretation. <![CDATA[<b>Determining the Content of Indigenous Law with Special Reference to Recording of the Law - Continental Views</b>]]> This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research partner, the Research Chair on Legal Diversity and Indigenous Peoples at the University of Ottawa, on "The Recording of Customary Law in South Africa, Canada and New Caledonia" in May 2018. <![CDATA[<b><i>Orocowewin Notcimik Itatcihowin: </i>The Atikamekw Nehirowisiw Code of Practice and the Issues Involved in Its Writing</b>]]> The Atikamekw Nehirowisiw Nation has for several years been developing a code of practice (orocowewin notcimik itatcihowin) to regulate hunting, fishing and plant harvesting activities in Nitaskinan, its ancestral territory. The Atikamekw Nehirowisiw code of practice is a collective project that sets out to put its territorial regulations in writing. The project's objective is threefold: to ensure the transmission of territorial knowledge and of rules relating to forest activities; to adapt these rules, passed on by ancestors, to the contemporary context; and to have them recognised by non-natives and the governments of other nations, including the governments of Canada and Quebec. This article presents some of the issues related to the process of writing and coding orocowewin notcimik itatcihowin, the Atikamekw Nehirowisiw code of practice; in particular, the importance of the oral tradition as a means of transmitting knowledge is emphasised. In our language, we say "atisokana ki atisokan" - we are infused and transformed by the narratives transmitted orally. This mode of transmission is politically, philosophically and emotionally significant. It is a unique way for us to let the heart speak, through direct contact, without interference. <![CDATA[<b>The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage</b>]]> In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has - and perhaps inevitably so -ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof. <![CDATA[<b><b>Case Law as an Authoritative Source of Customary Law: Piecemeal Recording of (Living) Customary Law?</b></b>]]> This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law. <![CDATA[<b>The Conundrum of Judicial Notice as a Means of Ascertaining Customary Law in Nigerian and South African Courts amid the Convergence of Positivism and Legal Pluralism</b>]]> The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law. <![CDATA[<b>Did I Break It? Recording Indigenous (Customary) Law</b>]]> In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry because there are limiting and disturbing fundamentalist premises underlying the debate regarding the recording of indigenous law. To take up these issues, I analyse and articulate the law and legal processes from two indigenous oral histories. The question under consideration is whether by this recording and analysis, I have somehow damaged Gitxsan law. In other words, did I break it? <![CDATA[<b>The Resonance of Colonial Era Customary Codes in Contemporary Uganda</b>]]> Colonial era codifications of customary law - especially those codified in indigenous first languages - have a resilient capacity to form and inform living customary law. In the context of Mukono District, Uganda, modern conceptions of customary law are informed and shaped by colonial era codifications promulgated by the British Protectorate and the Kingdom of Buganda. This research insight offers practical benefits to those seeking to promote access to justice and human rights development in Mukono District. Such benefits speak to the potential vitality and relevance of colonial era customary codifications. Misgivings about the alien influences and exploitative purposes that distorted and corrupted colonial era codes do not warrant disregard of their active legacy within modern customary legal frameworks. The use of receptive research approaches such as those developed and modelled by Sally Falk Moore can help ensure the ongoing influence of colonial era codes are not hidden by contemporary orthodoxies and biases. <![CDATA[<b>The Question is "Should Insurers Continuously Update Policyholder Records"? Insurance Law Requires the Principles of Administrative Law to Settle Disputes between the Policyholder and the Insurer</b>]]> It is possible to argue that the Financial Advisory Intermediary Services Ombud (hereafter FAIS Ombud) has jurisdiction to consider insurer's decisions not to update their internal administrative systems. The FAIS Ombud may therefore investigate such matters as a complaint as defined in section 1 of the Financial Advisory and Intermediary Services Act 37 of 2002 (hereafter the FAIS Act). On the other hand, upon any failure to investigate such complaints, the complainant may approach the Financial Services Tribunal, either to give directions to the FAIS Ombud regarding how to investigate the complaint or to replace this failure with the Tribunal's own investigation/reconsideration of a decision as regulated in section 8 of the Promotion of Administrative Justice Act 3 of 2000 (hereafter the PAJA). An administrative decision is defined in the Financial Sector Regulation Act 9 of 2017 (hereafter the FSRA) which includes the statutory ombud (example, FAIS Ombud) decisions, such as a decision not to investigate a complaint. When an insurer's decision is in fact an administrative decision, reference should also be made to the FSRA, i.e. an insurer's decision to debar an employee/representative or a decision not to update relevant policyholder records with new information. An insurer's decision not to update policyholder records is not part of this statutory regulation (FSRA) of what constitutes an administrative decision; nevertheless the PAJA could still be relevant to understand when these decisions could be considered a public function. Although the latter falls outside the scope of this article, the National Horse Racing Authority of Southern Africa v Cyril Naidoo 2010 3 SA 182 (N) is briefly discussed in this article with reference to a public function. In this article, the failure of the FAIS Ombud to investigate a policyholder's (hereafter client) complaint (the insurer is unwilling to update client records) is an administrative decision and it is specifically regulated by FSRA. For this reason, the relevance of the Financial Services Tribunal is discussed when the FAIS Ombud directs the complaint (or the client may also refer a matter in specific circumstances, as if the FAIS Ombud fails to investigate the matter within a reasonable time) to the Financial Services Tribunal for a reconsideration of the decision. <![CDATA[<b>The "Necessity Test" as Expressed by the Enigmatic Article XX(j) of the <i>General Agreement on Tariffs and Trade </i>(1994): Appellate Body Report, <i>India - Certain Measures Relating to Solar Cells and Solar Modules</i></b>]]> The General Agreement on Tariffs and Trade (1994) (GATT) is premised on the elimination of all barriers to trade in goods. Contrary to this approach, Article XX of the GATT authorises the circumvention of this imperative. More specifically, Article XX(j) of the GATT essentially provides that GATT contracting parties are authorised to promulgate measures that are "essential" to the acquisition of products in general or local short supply. This invariably means that only measures that are "essential" will satisfy the "necessity test" contemplated under Article XX(j). The Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules is the first World Trade Organisation case to elaborate on the "necessity test" of Article XX(j) of the GATT. This paper seeks to evaluate the Appellate Body's findings on the "necessity test" of Article XX(j). <![CDATA[<b><i>Gongqose v Minister of Agriculture, Forestry and Fisheries – </i></b><b>A Tale of Customary Rituals and Practices in Marine Protected Areas</b>]]> The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.