Scielo RSS <![CDATA[De Jure Law Journal]]> http://www.scielo.org.za/rss.php?pid=2225-716020210001&lang=pt vol. 54 num. 1 lang. pt <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>On "Dumping" and the Competition Act of South Africa: No "double remedy"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100001&lng=pt&nrm=iso&tlng=pt In "'Dumping' and the Competition Act of South Africa", Vinti espouses that the Competition Commission has jurisdiction over the actions of extra-territorial parties insofar as such actions involve "prohibited price discrimination" or "price dumping". He finds that the Competition Act and the International Trade Administration Act both bestow jurisdiction over the matter and hence argues that this would constitute an unfair double remedy if both authorities were to take action. He therefore proposes, on the basis of a Memorandum of Agreement that has been concluded between the Competition Commission and the International Trade Administration Commission, that either of the Acts should be amended to ensure that no such double remedies are imposed. Although it is agreed that such "double remedy", if applied, would indeed be unfair for several reasons, this article argues that no such double remedy exists and that, despite the provisions of the Competition Act, the Competition Commission has no jurisdiction in matters related to dumping. <![CDATA[<b>Giant leaps or baby steps? A preliminary review of the development of children's rights jurisprudence in Zimbabwe</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100002&lng=pt&nrm=iso&tlng=pt This contribution provides an overview of children's rights adjudication in Zimbabwe with a specific focus on emerging jurisprudence under the 2013 Constitution. After a summary of Zimbabwe's performance in implementing children's rights under both international and African regional law, the authors examine how Zimbabwean superior courts have dealt with the protection of children's rights. In order to give a fair assessment, we begin by reflecting on the Lancaster House (LH) Constitution (1980) and the resultant jurisprudence thus shedding light on how courts conceptualised children's rights in the absence of a specific child rights provision in the Constitution. This is followed by an analysis of the emerging jurisprudence under the 2013 Constitution which specifically entrenches children's rights. We focus specifically on cases decided between 2013-2019. A focus on seminal court judgements and how courts adjudicated children's rights will guide the authors in ultimately deciding whether or not Zimbabwean courts have made giant leaps or baby steps in the protection and promotion of children's rights under the 2013 Constitution. <![CDATA[<b>Lessons from history predicting a possible tax revolt in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100003&lng=pt&nrm=iso&tlng=pt South Africa is experiencing harsh economic circumstances, which negatively affects the economic environment of its citizens. Literature shows that historical tax resistance or tax revolts were mostly sparked by citizens burdened by their economic living conditions. South Africans' disgruntlement has been voiced in many ways, from resistance to E-tolls to increasing numbers of violent service protests. This article explores the economic factors present in three historical tax revolts to assess the possibility of tax resistance and/or a tax revolt in South Africa. The three historical tax revolts were identified through a purposive selection process. A systematic review was then followed to identify the economic factors present in each historical tax revolt. Finally, the economic factors deduced from the historical tax revolts were applied to the current economic situation in South Africa. The findings are that all the economic factors identified from history are currently present in South Africa, indicating the imminent possibility of a tax revolt. Whilst previous research has focused mainly on explaining past events, this article attempts to anticipate and prevent a future event. The contribution of this article is thus to underline possible economic factors that may lead to tax resistance and/or a tax revolt in South Africa. The aftermath of COVID-19 may further worsen the current economic situation, especially with the exacerbation of the already high unemployment rate that may just be a tipping point for a possible tax revolt. <![CDATA[<b>The indigenisation of customary law: Creating an indigenous legal pluralism within the South African dispensation: possible or not?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100004&lng=pt&nrm=iso&tlng=pt The article examines the possibility of creating an indigenous legal pluralism within the South African context. Due to the historical and current marginalisation of customary law, can customary law be developed, reformed and codified? Furthermore, can the legal regimes and human rights of indigenous people of South Africa be ascertained? The article renegades the historical marginalisation of customary law due to colonialism and apartheid; where indigenous people's legal regimes were placed subordinate to common law. The article further implores the current status of indigenous law nationally and internationally. The article seeks to advance the argument based on legislative and judicial analysis, that customary law is still marginalised under the current constitutional dispensation. The international call and new recognition of customary law are commendable; the article seeks to review whether South Africa is keeping up or not to the international directives embedded within declarations and conventions they are a signatory to. The article will further comparatively analyse foreign countries that have managed to do what South Africa is struggling to achieve with regard to the recognition, development, application, and reform of customary law. <![CDATA[<b>Investigating the extraterritorial application of the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100005&lng=pt&nrm=iso&tlng=pt The territorial scope of the application of human rights treaties has been a core discussion when dealing with the enforcement of human rights obligations imposed by human rights treaties on State Parties. In particular, this is because the conduct of a State may affect the human rights of people situated outside the State's territorial borders. Accordingly, to afford protection to the affected States, most international human rights instruments contain the so-called jurisdictional clause which aims to identify the range of people to whom States owe their human rights obligations under a treaty. However, the term "jurisdiction" has not achieved an undoubted definition as yet and remains a continued area of contention. The subject matter of this article is the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It concerns therefore, the applicability of these human rights treaties to the conduct of a State which affects the rights of people outside its territorial borders and results in the lack of the full enjoyment of the human rights recognised in the Covenants, and which would be qualified as a violation of human rights treaty had it been undertaken on the State Party's own territory. Although most of the literature on this topic relates specifically to armed conflict and military occupation, the author applies the tests established for the determination of the exterritoriality of the treaties in circumstances inclusive of and beyond armed conflict and military occupation. <![CDATA[<b><i>Makeshift 1190 (Pty) Ltd v Cilliers </i>2020 5 SA 538 (WCC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100006&lng=pt&nrm=iso&tlng=pt The territorial scope of the application of human rights treaties has been a core discussion when dealing with the enforcement of human rights obligations imposed by human rights treaties on State Parties. In particular, this is because the conduct of a State may affect the human rights of people situated outside the State's territorial borders. Accordingly, to afford protection to the affected States, most international human rights instruments contain the so-called jurisdictional clause which aims to identify the range of people to whom States owe their human rights obligations under a treaty. However, the term "jurisdiction" has not achieved an undoubted definition as yet and remains a continued area of contention. The subject matter of this article is the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It concerns therefore, the applicability of these human rights treaties to the conduct of a State which affects the rights of people outside its territorial borders and results in the lack of the full enjoyment of the human rights recognised in the Covenants, and which would be qualified as a violation of human rights treaty had it been undertaken on the State Party's own territory. Although most of the literature on this topic relates specifically to armed conflict and military occupation, the author applies the tests established for the determination of the exterritoriality of the treaties in circumstances inclusive of and beyond armed conflict and military occupation. <![CDATA[<b>Falling through the cracks: The plight of "over-aged" children in the public education system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100007&lng=pt&nrm=iso&tlng=pt The legislative and policy framework regulating compulsory education in South Africa requires that learners beyond the age of fifteen enrol in an adult education centre to meet their educational needs. Adult education which has been called the "dysfunctional stepchild" of South African education, is poorly regulated in terms of access and quality control. Therefore, learners who are forced to leave the formal schooling sector are not necessarily guaranteed a placement in an adult education facility. This article focuses on a specific cohort of learners between the ages of fifteen and eighteen who are technically children in terms of South African law and therefore in need of special protection. In particular, the article assesses the extent to which the constitutional rights of these learners are violated by the current compulsory education legislative and policy structure. These rights include the rights to basic education, equality as well as the bests interests of the child. <![CDATA[<b>The feasibility of the victims of corruption's claim for constitutional damages against corrupt public officials in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100008&lng=pt&nrm=iso&tlng=pt South Africa, just like other countries, is grappling with corruption in the private and public sectors. For this reason, the state has adopted various measures aimed at fighting this scourge. Part of the measures adopted, in this regard, are the legal measures. This article argues that, in addition to the legal measures in place, there is a feasibility for victims of corruption to pursue a claim for constitutional damages arising from corruption by public officials. This contention is based on the fact that constitutional damages is an appropriate remedy for corruption cases involving public officials. <![CDATA[<b>Sexual autonomy and violence against women in Nigeria: Assessing the impact of Covid-19 pandemic</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100009&lng=pt&nrm=iso&tlng=pt Sexual and reproductive rights are centred on an individual's autonomy. However, these rights are jeopardised when women and girls are faced with sexual violence. Recently, there was reported increase in violence against women and girls, constituting an infringement of their human rights. Relieving this burden has become a human rights commitment for most countries including Nigeria. Therefore, this article examines how these rights were impacted during the COVID-19 pandemic in Nigeria. It examines reports from media sources, and conducted in-depth interviews with Forty-five (45) women in a bid to elicit their responses on their experiences during the pandemic. The research found that the pandemic had both positive and negative impacts on the women's sexual autonomy. This article recommends the creation of more awareness for women, the fostering of political will, and dedicated funding to ensure active implementation and better protection of women's rights in Nigeria. <![CDATA[<b>The admissibility of criminal findings in civil matters: Re-evaluating the <i>Hollington </i>judgment</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100010&lng=pt&nrm=iso&tlng=pt In Hollington v Hewthorn & Co Ltd 2 1943 All ER 35 it was held that a finding of a criminal court did not have any probative value in a subsequent civil action and was inadmissible as evidence. Despite the case being one of English origin, the South African courts have largely adopted this ruling as one grounded in our common law. In this paper, the judgment in the Hollington case is critically analysed in order to determine its continued applicability in the face of South Africa's existing law of evidence and the Constitution of the Republic of South Africa, 1996 ("the Constitution"). It is argued that in light of the existing law, this rule no longer finds application in South Africa. <![CDATA[<b>Disruptive technologies and the future of regulations - ICT regulatory structure(s) determined</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100011&lng=pt&nrm=iso&tlng=pt Digitisation of information compels a revision of the Fourth Industrial Revolution (4IR) and its associated technologies. This arises because 4IR technologies, for example, the Internet of Things (IoT), Big or Massive Data, Artificial intelligence (AI), augmented or virtual reality and machine learning, drastically adjust the manner in which an information society operates. Specifically, they present unprecedented opportunities for business, economy and online user or consumers. Furthermore, they profoundly model and re-model productions. As a result, the conventional lines between the physical, digital and biological spheres become imprecise. Given the extent of the transformation that 4IR technologies bring to society, it has become necessary to refer to them as the disruptive technologies. However, the inquiry is to what extent is the information society ready to take advantage of disruptive technologies and control some of the setbacks that emanate from therefrom? For regulatory purposes, how electronic or e-ready regulators are to control the adverse consequences that are associated with disruptive technologies? To address these questions, this paper discusses some of the selected theories for technology regulations (artificial immune system (AIS) theory and theory for Lex Informatica). The theories are not technology regulations, as such. Simply, they concede that technology regulations should encourage a proper scrutiny of the position of the technologies in the information society. <![CDATA[<b>Zimbabwe's natural person debt relief system: Much-needed relief for No Income No Asset (NINA) debtors or 'out with the new'?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100012&lng=pt&nrm=iso&tlng=pt Access to debt relief measures and a concomitant discharge of debts are some of the most fundamental elements of an effective natural person debt relief system. Failure to gain access to debt relief measures - due to, among others, stringent access requirements has plagued No Income No Asset (NINA) debtors in many jurisdictions worldwide. In response to this plight of NINA debtors, a remarkable trend in insolvency law has been witnessed which seeks to accommodate the needs of this widely excluded group of debtors. Zimbabwe is one of the countries which has responded positively to this trend by reforming its natural person debt relief system. This has seen the introduction of a consolidated Insolvency Act 7 of 2018. The Insolvency Act introduces the novel pre-liquidation and postliquidation compositions to the debt relief system. This paper examines the treatment of NINA debtors in the recently reformed natural person debt relief system of Zimbabwe. This examination has reviewed that the natural person debt relief system affords relief to over-committed debtors with excess income and/or disposable assets while ostracising NINA debtors. Additionally, this paper also juxtaposed Zimbabwe's natural person debt relief system with internationally regarded principles and policies in insolvency law as outlined in the World Bank Report on the treatment of the insolvency natural persons and provided necessary recommendation for the reform of the prevailing debt relief measures. <![CDATA[<b>Is discriminating against employees living with cancer in the workplace justified?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100013&lng=pt&nrm=iso&tlng=pt This article interrogates the issue relating to employees living with cancer taking part in employment without being discriminated against based on their medical condition. It will be clearly outlined that cancer does not take away the ability of employees living with cancer to continue with work or enter into employment, which is what most employers and fellow employees believe based on the myth and stigma attached to cancer. This needs to be discouraged through proper education and creating awareness about cancer. This article will interrogate what cancer is and how it develops in the human body as well as the extent or impact of cancer on a patient to a point of leading to disability. The debate of whether cancer amounts to a disability in the South African context will be entertained and recommendations outlined with the aim of ensuring that employees living with cancer are not excluded in taking part in employment among other things. Focus will then shift to the most important aspect of this article which is discrimination, and to explore the different forms of discriminations as well as outline why employers tend to discriminate against employees living with cancer and can this conduct of employers be justified in any way in line with the South African legal system and the article will be incomplete if reference is not made to the English legal system. This is attributed to the fact that the South African legal system is built on the English legal system to a lesser or greater extent and lessons can be drawn from the English legal system due to the advances that have been made when it comes to the protection of employees living with cancer in the workplace. Recommendations will follow with the aim of providing a way forward for employees living with cancer in the South African market. <![CDATA[<b>Dewesternising the South African social security law: a leap towards an Afrocentric legal curricular</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100014&lng=pt&nrm=iso&tlng=pt Recent calls to dewesternise the curricular are especially pertinent to the teaching of Social Security Law in South Africa, which has traditionally been dominated by the Eurocentric canon. This article argues that South African Social Security Law is a western-centric phenomenon and dewesternising it is necessary for the decolonisation of legal education. On this score, it provides a critique of the South African Social Security Law in search of pragmatic ideas that can advance the project of decolonising it and creating Third World perspectives. The article unsettles the dominant Eurocentric model on the origin of South Africa Social Security Law which marginalise the role that indigenous knowledge play in the development of this area of law. It argues that placing indigenous knowledge systems on the epicentre of the historiography of teaching South African Social Security Law will lead to some epistemic disruption of the current historic paradigm, a project necessary for the decolonisation of the legal mind and intellectual landscape. The article re-contextualising the orthodox social security theory in the historical scene of colonial and post-era; constructing alternative social security historiography; offering an Africanised dialogue on the origins of the informal strands of social security law; the elaboration of alternative methodologies of actualising the constitutionally protected right to have access to social security. The paper also contends with concepts and ideas such as the deemed trans-colonial importation of social security origins, decolonial philosophy as an epoch of transforming legal education in the context of South African Social Security Law. <![CDATA[<b>Developing the common law crime murder in relation to physician-assisted suicide and physician-assisted euthanasia: Revisiting the missteps of <i>Stransham-Ford v Minister of Justice and Correctional Development </i>2015 (4) SA 50 (G)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100015&lng=pt&nrm=iso&tlng=pt Digitisation of information compels a revision of the Fourth Industrial Revolution (4IR) and its associated technologies. This arises because 4IR technologies, for example, the Internet of Things (IoT), Big or Massive Data, Artificial intelligence (AI), augmented or virtual reality and machine learning, drastically adjust the manner in which an information society operates. Specifically, they present unprecedented opportunities for business, economy and online user or consumers. Furthermore, they profoundly model and re-model productions. As a result, the conventional lines between the physical, digital and biological spheres become imprecise. Given the extent of the transformation that 4IR technologies bring to society, it has become necessary to refer to them as the disruptive technologies. However, the inquiry is to what extent is the information society ready to take advantage of disruptive technologies and control some of the setbacks that emanate from therefrom? For regulatory purposes, how electronic or e-ready regulators are to control the adverse consequences that are associated with disruptive technologies? To address these questions, this paper discusses some of the selected theories for technology regulations (artificial immune system (AIS) theory and theory for Lex Informatica). The theories are not technology regulations, as such. Simply, they concede that technology regulations should encourage a proper scrutiny of the position of the technologies in the information society. <![CDATA[<b><i>MT v Road Accident Fund; HM v Road Accident Fund </i>[2021] 1 ALL SA 285 (GJ) Adverse findings against experts and legal practitioners without evidence or a hearing</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100016&lng=pt&nrm=iso&tlng=pt Digitisation of information compels a revision of the Fourth Industrial Revolution (4IR) and its associated technologies. This arises because 4IR technologies, for example, the Internet of Things (IoT), Big or Massive Data, Artificial intelligence (AI), augmented or virtual reality and machine learning, drastically adjust the manner in which an information society operates. Specifically, they present unprecedented opportunities for business, economy and online user or consumers. Furthermore, they profoundly model and re-model productions. As a result, the conventional lines between the physical, digital and biological spheres become imprecise. Given the extent of the transformation that 4IR technologies bring to society, it has become necessary to refer to them as the disruptive technologies. However, the inquiry is to what extent is the information society ready to take advantage of disruptive technologies and control some of the setbacks that emanate from therefrom? For regulatory purposes, how electronic or e-ready regulators are to control the adverse consequences that are associated with disruptive technologies? To address these questions, this paper discusses some of the selected theories for technology regulations (artificial immune system (AIS) theory and theory for Lex Informatica). The theories are not technology regulations, as such. Simply, they concede that technology regulations should encourage a proper scrutiny of the position of the technologies in the information society. <![CDATA[<b>The role of clinical legal education in developing ethical legal professionals</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100017&lng=pt&nrm=iso&tlng=pt Training in legal professionalism and ethics is a vital part of any legal education. Teaching these aspects according to the Socratic method generally proves to be ineffective in producing the desired result. A lawyer's actual life experience, which include happiness and career satisfaction, is rarely included. This article will explore on what it means to be an ethical human being and consider the teaching of professionalism and ethics by way of the clinical legal education methodology. Clinics have particular riches to offer and discussing professionalism, values and ethics in a clinical setting can assist students to begin to identify their own professional sense. University law clinics serve as a role model in legal practice about how a legal practitioner should behave and what ethical decision-making means. The link between culture and ethics, which informs a person's sense of morality and ethics, is explored, with application to diversity and multiculturalism. In clinical context, students assume a high degree of responsibility by taking instructions from clients and they will benefit from cooperative learning where they will begin to develop a deep understanding of professionalism and ethical practice. Through tutorials and debriefing sessions and later in their reflection assignments, students discuss and reflect on aspects of the law, the legal system, their own interviewing skills and the experience of the client. In their reflection assignments, students readily identify areas for improvement but also refer to what they are able to achieve in their interview, building their motivation and sense of autonomy. Ongoing reflection and constructive feedback thereon will support a commitment to ethical and professionally competent, self-directed and autonomous lawyering. Clinical training affords students the opportunity to explore their legal professional and ethical behaviours and values, allowing them to develop in capable, self-directed and independent practitioners who will not only assume responsibility for their individual clients, but also contribute to their communities. <![CDATA[<b>Is English becoming a threat to the existence of indigenous languages in institutions of higher learning in South Africa?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100018&lng=pt&nrm=iso&tlng=pt This article provides a critique of the judgment of the Constitutional Court of South Africa in Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch1 with specific reference to the concept of transformative constitutionalism and the use of indigenous languages in tertiary education. The discussion further highlights the significant role played by one's own language in his or her day-to-day life encounters and argues that the wait has been too long to have one of the indigenous languages fully utilised in one of the tertiary institutions, amongst others. Finally, the paper recommends that the use of indigenous languages at institutions of higher learning needs to be given urgent attention by all stakeholders and can no longer remain at the mercy of those who are tasked with language policies at tertiary institutions. <![CDATA[<b>The Treaty on the Lesotho Highlands Water Project and the principle of "equitable and reasonable utilisation"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100019&lng=pt&nrm=iso&tlng=pt The principle of "equitable and reasonable utilisation" has been proposed as a tool to resolve a conflict of uses since it advocates for fair and sustainable utilisation of shared water resources. This paper examines this proposition with a specific focus on the Treaty on the Lesotho Highlands Water Project, which regulates the use of the Orange River. To this end, it is my view that the principle of "vital human needs" as an incidence of the principle of "equitable and reasonable utilisation", proffers the most effective tool to resolve the anticipated conflict of uses in the Orange River basin. <![CDATA[<b>Relative poverty in female disability grant recipients in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100020&lng=pt&nrm=iso&tlng=pt It is a well-established fact that adequate social security measures are used as a tool to allow persons a measure of financial security and support in the event of certain contingencies. Historically, disability has been one of the "core" contingencies, which is covered by social security schemes. The purpose of social security in providing for this contingency is to compensate for income lost or reduced as a result of disability. The fact that more women in South Africa have disabilities than men leads to the conclusion that women with disabilities are more negatively affected by poverty than men with disabilities. This in turn makes a woman with a disability more likely to be dependent on the disability grant than a man with a disability. The link between gender, disability and poverty will be discussed to illustrate the socio-economic position of female disability grant recipients in comparison to male disability grant recipients. This article will address the relative poverty of female disability grant recipients and make recommendations to address this relative poverty. <![CDATA[<b>Aquamation: legal nail in burial and cremation's coffin?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100021&lng=pt&nrm=iso&tlng=pt Respect for the dead defines a community. Burial of a corpse has for many years been the only way of disposing of a dead body. Land available for burial sites is limited. In the 1960s cremation became an acceptable alternative to burial. Recently a more environmentally friendly way of disposing of a corpse was introduced to South Africa. Alkaline Hydrolysis or aquamation is a chemical process dissolving a dead body. The wastewater can be disposed of in a sewage system. Legislation has not kept up with this new technology. A new set of regulations to the National Health Act 61 of 2003 is proposed. <![CDATA[<b>The Supreme Court of Appeal and the handing over of the bride in customary marriages</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100022&lng=pt&nrm=iso&tlng=pt While there is unanimity that the mere payment of ilobolo (or part thereof) does not conclude a customary marriage, recent decisions of the SCA indirectly reverse this. Ilobolo must be accompanied by the integration of the bride into her new family in order to conclude a customary marriage. The integration comprises many events - depending on the ethnic group. These events include the handing over of the bride, ukumekeza (Swati). In Moropane v Southon, the SCA held that the handing over of the bride was an indispensable aspect of the integration of the bride. In Mbungela v Mkabi and Tsambo v Sengadi the SCA backtracked on its earlier decision, arguably without any clear principles. This article argues that these decisions of the SCA on customary marriages create uncertainty regarding the conclusion of customary marriages. <![CDATA[<b>An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602021000100023&lng=pt&nrm=iso&tlng=pt Marital privilege is founded on the biblical principles of the union between man and wife. Thus wives were not competent or compellable witnesses against their husbands. Over the years the privilege developed in English common law. South Africa codified the privilege through Section 198 of the Criminal Procedure Act 51 of 1977 which states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the Act. There are many criticisms against affording a privilege to a particular class of persons - notably that the non-compellability exception given to spouses is unconstitutional as it violates the right to equality in terms of section 9 of the Constitution. Recent media coverage at the Zondo Commission highlighted this conundrum when the ex-minister's spouse was asked to testify. This article examines the merits of the unconstitutionality argument and concludes that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital privilege. Finally, recommendations are proposed in this regard which examine the nature and evolution of spousal competence and non-compellability in South African law.