Scielo RSS <![CDATA[De Jure]]> http://www.scielo.org.za/rss.php?pid=2225-716020190001&lang= vol. 52 num. 1 lang. <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Cancer employees and the right to fair labour practices in terms of the Labour Relations Act 66 of 1995</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100001&lng=&nrm=iso&tlng= Cancer is a medical condition that affects all of mankind and does not take into account the race, religion and socio-economic position of a person. The effect of cancer on people living with this medical condition goes beyond physical and psychological distress. This is because persons living with cancer experience discrimination in the workplace due to cancer and this affects the employment status or position of cancer employees. Cancer employees if they are not dismissed from work their working conditions is in most instances unbearable due to the unfair labour practices they experience at the hands of employers and fellow employees. Awareness about cancer in the workplace is encouraged and championed in this contribution as one of the measures to eradicate unfair labour practices that are experienced by cancer employees in the workplace. <![CDATA[<b>Race, history, irresolution: Reflections on <i>City of Tshwane Metropolitan Municipality v Afriforum </i>and the limits of "post"-apartheid constitutionalism</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100002&lng=&nrm=iso&tlng= This article reflects on the limits of "post"-apartheid constitutionalism through an extended theoretical discussion and close reading of the Constitutional Court decision in City of Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC). It focuses in particular on how South Africa's history of colonial conquest, white supremacy and racism -and the nation's failure to reckon with that history - introduced a "constitutional irresolution" in the case. Developed by Emilios Christodoulidis as a critique of constitutional optimism in all its forms, "constitutional irresolution" describes what happens when constitutionalism, because of its institutional and rigid character, is unable to address political or legal contestations which challenge its own terms and norms. In this article, this irresolution is then related to the work of Mogobe Ramose and specifically his critique of how the negotiated settlement and transition of the 1990s followed a path of democratisation, which not only negated the exigency of decolonisation and historical justice but also resulted in the "constitutionalisation of the injustice arising from the unjust war of colonisation". Since City of Tshwane raised questions concerning race, belonging and the still colonial character of South African spaces, mind-sets and power relations, it illustrates the persistence of the colonial-apartheid past into the constitutional present. Among other things, I take this blurring of the divide between the past and the present to be an exposure of the limits, or irresolution, of "post"-apartheid constitutionalism and "post"-apartheid jurisprudence: <![CDATA[<b>Opening Pandora's box: A legal analysis of the right to food in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100003&lng=&nrm=iso&tlng= The right to food (RTF) is a popular concept in South Africa. Its inclusion in the 1996 Constitution raised the hopes and promised a better life for many. By enshrining a broad spectrum of (civil/political and economic/ social) rights, the Constitution symbolised a commitment and a bold statement by the state to promote the fundamental rights of every individual. Nonetheless, after two decades since its adoption, the lofty ideals of the Constitution remain a pipe dream to many (who continue to face abject poverty, endemic hunger and malnutrition). It is clear that although the RTF under sections 27 and 28is noble in purpose; its operationalisation has been fraught with several legal hurdles. To overcome these challenges, this article outlines some recommendations on how human rights activists and legal practitioners can overcome assertion often advanced against the realisation of this right. As such, there is a need to provide policy options and legal clarity on how to enforce the RTF. To this end, the paper provides claims which could be submitted before a court or domestic human rights bodies on why government must momentarily adopt reasonable steps to fulfil its obligation under section 27(1)(b). <![CDATA[<b>A critique of the Swazi Constitutional rules on succession to kingship</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100004&lng=&nrm=iso&tlng= Several aspects of Swazi constitutional law oftentimes present a jigsaw puzzle to many scholars of constitutional law. The promulgation of the new Constitution in 2005 purportedly marked an end to absolutism and ushered in liberal constitutionalism. However, it would seem that the strong role given to customary law in the constitutional design of Swaziland has provided an avenue for absolutism of the monarch. One area of customary law which is still very controversial is the succession to office of King. The Constitution is not elaborate on the rules of succession; it cagily provides that succession to office of King shall be regulated by "Swazi law and custom". In practice, this has effectively given 'Swazi law and Custom' pre-eminence over the Constitution. The purpose of this article is to critique the rules of succession to the office of monarch in Eswatini. The paper contends that the Constitution can regain its supremacy by incorporating the customary rules of succession into the Constitution. When those roles have been codified in the Constitution, they can easily be synchronised with other devices of constitutionalism such as human rights and supremacy of the Constitution. <![CDATA[<b>Impact of global food and agriculture laws on Africa's food security</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100005&lng=&nrm=iso&tlng= This study considers expanding beyond the current collective understanding of research on the impact of global food and agriculture laws on Africa's food security. This paper aims to answer two basic questions: are the current global food and agriculture laws capable of facilitating and supporting the goal of ending hunger in Africa and increasing food security; will the existing global food law promote fair and equitable food production and supply practices to benefit all who need it? This paper will answer the questions by using a qualitative approach to Africa's experience in dealing with the existing global food and agriculture laws. This will provide insight into understanding the law, the behaviour of society and the outcome of the application of the law in real life. This will enable us to identify the gap in the global food law addressing food security. The qualitative data in the study will help the in-depth explanation, exploration and understanding of the root cause of food insecurity. <![CDATA[<b>Taming the mechanics of mortgage foreclosures</b><b>: </b><b>The case of <i>ABSA Bank Ltd v Mokebe and Related Cases </i>2018 (6) SA 492 (GJ)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100006&lng=&nrm=iso&tlng= This study considers expanding beyond the current collective understanding of research on the impact of global food and agriculture laws on Africa's food security. This paper aims to answer two basic questions: are the current global food and agriculture laws capable of facilitating and supporting the goal of ending hunger in Africa and increasing food security; will the existing global food law promote fair and equitable food production and supply practices to benefit all who need it? This paper will answer the questions by using a qualitative approach to Africa's experience in dealing with the existing global food and agriculture laws. This will provide insight into understanding the law, the behaviour of society and the outcome of the application of the law in real life. This will enable us to identify the gap in the global food law addressing food security. The qualitative data in the study will help the in-depth explanation, exploration and understanding of the root cause of food insecurity. <![CDATA[<b><i>S v Frederiksen </i>(33/2016) ZAFSHC 161; SACR 29 (FB) (14 September 2017)</b><b>: </b><b>Human tissue in a freezer: a crime or not?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100007&lng=&nrm=iso&tlng= This study considers expanding beyond the current collective understanding of research on the impact of global food and agriculture laws on Africa's food security. This paper aims to answer two basic questions: are the current global food and agriculture laws capable of facilitating and supporting the goal of ending hunger in Africa and increasing food security; will the existing global food law promote fair and equitable food production and supply practices to benefit all who need it? This paper will answer the questions by using a qualitative approach to Africa's experience in dealing with the existing global food and agriculture laws. This will provide insight into understanding the law, the behaviour of society and the outcome of the application of the law in real life. This will enable us to identify the gap in the global food law addressing food security. The qualitative data in the study will help the in-depth explanation, exploration and understanding of the root cause of food insecurity. <![CDATA[<b>The need to provide members of retirement funds which are not regulated by the Pension Funds Act access to a specialised dispute resolution forum</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100008&lng=&nrm=iso&tlng= This paper discusses the disparity in the manner in which retirement funds members regulated by the Pension Funds Act ("PFA") and those not covered by the PFA are treated in relation to the process they need to follow to resolve their retirement funds related complaints. In particular, this paper argues that there is no rational basis for not extending the services of the Office of the Pension Fund Adjudicator to members whose retirement funds are not regulated by the PFA. It is argued that the services of this office should be extended to all retirement funds in South Africa irrespective of whether they are regulated by the PFA. Once this office has been extended as proposed in this paper, it will be able to adjudicate disputes arising from all retirement funds in South Africa. This office should be made easily accessible to all retirement funds members. It is argued further that there is a need for the state to financially capacitate this office in order to make it available in all the provinces of the Republic. This will allow all retirement fund members irrespective of where they reside to be able to lodge complaints with a specialised tribunal dealing with retirement related disputes. <![CDATA[<b>Traditional "juju oath" and human trafficking in Nigeria: A human rights perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100009&lng=&nrm=iso&tlng= Human trafficking in Africa is currently on the increase due to its benefits to the perpetrators. Despite the African Union's (AU) functional commitment and other African seminal initiatives, to combat trafficking, the menace has remained un-stemmed. Noticeably, to date, women and children are the most vulnerable groups in human trafficking across the world. Africa remains the hub of human trafficking considering the predominance of poverty and conflict within the continent. The prevalence of women and children being trafficked, mainly for prostitution, has compounded the HIV/AIDS infection rate in Africa. In Nigeria, cross-border women and children trafficking for prostitution has been on the increase, as traffickers adopt various means of obtaining slaves. One of the means of recruiting women and children is to subject them to a traditional oath of silence ceremony. This control mechanism is to silence victims and trap them in debt bondage and it has been extremely effective in its implementation. Victims are subjected to the oath prior to their departure from Nigeria to ensure debt commitment and non-disclosure of the identity of the traffickers. However, in the event of non-compliance and violation of the oath by the victims and family members, illness and ultimate death may suddenly occur. The efficacy of the oath as a control mechanism is tantamount to torture as defined by international law. In light of the forgone, this study explores the use of the Oath of Silence in human trafficking and the vulnerabilities, which cause women and children to become victims of human trafficking. Hitherto, the study gives a snapshot of the gross human rights violations that occur therein. Finally, the study proposes new ways forward in safeguarding the rights of individuals. <![CDATA[<b>A critical analysis of article 16 of the UN refugee convention in relation to victims of sexual violence in refugee camps in Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100010&lng=&nrm=iso&tlng= This article analysed article 16 of the United Nation convention relating to the status of refugees 1951, which provides free access to courts in the contracting states for all refugees, in relation to victims of sexual violence in refugee camps. However, it was found that with the current state of affairs in the domestic criminal justice system, a victim of crime has no legal standing to have direct access to a court for the enforcement of his or her rights. Instead, the crime is considered as against the state and not against the individual victims, and this has caused severe hardships for victims of sexual violence in refugee camps. Thus, for a victim to benefit maximally and enjoy the requisite free access to court, we argue that victims of sexual violence in a refugee camp should be accorded the locus standi and made a co-party to the prosecution of their perpetrators, as a paradigm shift from the current domestic and international criminal justice system that uses victims as a witness for the state prosecution, so that victims can assert their rights and plead for the required remedy and reparation that will ameliorate their plight. In order to achieve this, the authors are advocating for law reform of both the domestic and international criminal justice system to reflect victims' rights as co-prosecutor of their assailant. <![CDATA[<b><i>Nondabula v Commissioner: SARS </i></b><b>(2018 (3) SA 541 (ECM) (27 June 2017))</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602019000100011&lng=&nrm=iso&tlng= This article analysed article 16 of the United Nation convention relating to the status of refugees 1951, which provides free access to courts in the contracting states for all refugees, in relation to victims of sexual violence in refugee camps. However, it was found that with the current state of affairs in the domestic criminal justice system, a victim of crime has no legal standing to have direct access to a court for the enforcement of his or her rights. Instead, the crime is considered as against the state and not against the individual victims, and this has caused severe hardships for victims of sexual violence in refugee camps. Thus, for a victim to benefit maximally and enjoy the requisite free access to court, we argue that victims of sexual violence in a refugee camp should be accorded the locus standi and made a co-party to the prosecution of their perpetrators, as a paradigm shift from the current domestic and international criminal justice system that uses victims as a witness for the state prosecution, so that victims can assert their rights and plead for the required remedy and reparation that will ameliorate their plight. In order to achieve this, the authors are advocating for law reform of both the domestic and international criminal justice system to reflect victims' rights as co-prosecutor of their assailant.