Scielo RSS <![CDATA[De Jure Law Journal]]> http://www.scielo.org.za/rss.php?pid=2225-716020220001&lang=en vol. 55 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation</b>: <b>Litigation v Arbitration</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100001&lng=en&nrm=iso&tlng=en Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond. <![CDATA[<b>The Seychelles Employment Tribunal: The drafting history of the Employment (Amendment) Act of 2008 and its relevancy to understanding the work of the Tribunal</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100002&lng=en&nrm=iso&tlng=en In 1995, the National Assembly of Seychelles passed the Employment Act. However, the 1995 Act did not establish the Employment Tribunal. It is against this background that on 8 September 2008, the Employment (Amendment) Bill, was published in the Official Gazette. The bill was debated and passed in the National Assembly on 30 September 2008. It was assented to by the President a few days thereafter, that is, on 8 October 2008 and published in the official gazette on 13 October 2008 and it became the Employment Amendment Act (No. 21 of 2008). Immediately thereafter, the Employment Tribunal started its work. Since the coming into force of the Employment (Amendment) Act, the Tribunal, the Supreme Court and the Court of Appeal have developed rich jurisprudence on the application and interpretation of the Employment (Amendment) Act. However, in this jurisprudence, none of these institutions rely on the drafting history of the Employment (Amendment) Act although case law shows that there are instances in which Seychellois courts have referred to Hansard in interpreting legislation for the purpose of determining "legislative intent." In this article, the author relies on the drafting history of the Employment (Amendment) Act and in particular the Employment (Amendment) Bill (2008) and the verbatim debates of the National Assembly (Hansard) to argue that the manner in which the Tribunal, the Supreme Court or Court of Appeal have interpreted or applied the sections of the Employment (Amendment) Act dealing with the following issues is debatable: registering a grievance before the competent officer; registering a grievance before the Tribunal; and penalties by the Tribunal (especially compensatory awards). <![CDATA[<b>A double-edged sword: The role of insurable interest in non-indemnity insurance in the light of the COVID-19 pandemic in Zimbabwe</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100003&lng=en&nrm=iso&tlng=en The on-going Covid-19 pandemic has affected many facets of life including the business of insurance. It raises fresh questions as to who can insure the life of another because it has led to the loss of many lives. This brings one to the requirement of insurable interest in non-indemnity insurance. This paper argues that the requirement should be removed as it adds confusion to this branch of insurance law. It further limits the categories of people who can insure the lives of others. The Insurable Interest Bill of England attempts to expand the circumstances where one can have insurable interest. It is a step in the right direction as it represents liberalisation of that requirement. However, there are persuasive decisions in both Zimbabwe and South Africa which held that the existence of insurable interest should be a mere factor in deciding whether a contract is one of insurance or a mere wager. It is submitted that this decision can still be arrived at in some cases without even considering the existence of insurable interest. Removing the requirement of insurable interest has precedence as it has happened in other jurisdictions such as New Zealand and Australia. In fact, the intention of the Life Assurance Act 1 774 has not been achieved in real practice. The legal principles surrounding insurable interest in non-indemnity insurance are not only confused but they are confusing. Thus, the paper proposes for other facts which may be taken into account in determining whether a contract is one of insurance and not a wager. Such factors may include the age of the parties, the intention of the parties, the relationship of the parties and the consent of the insured. The emphasis should be on determining whether a contract is not a wager rather than to rely solely on the presence or absence of insurable interest. <![CDATA[<b>An overview of maternity protection in Botswana: A critique of the Employment Act through the International Labour Organisation's Maternity Protection Convention lens</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100004&lng=en&nrm=iso&tlng=en This paper assesses the legal framework pertaining to maternity protection in Botswana's private sector. Botswana is a member of the International Labour Organisation (ILO), but the country has not ratified the ILO Maternity Convention. This notwithstanding, the Government has enacted a legal framework on maternity protection through the Employment Act to guarantee some protection for female private sector employees. This paper critiques this framework through the ILO Maternity Protection Convention lens. Drawing on this comparative analysis, the paper highlights the manner in which Botswana's framework complies with international standards on maternity protection and highlights key points where legislative reform is justified. The analysis also considers the jurisprudence of Botswana's Industrial Court to demonstrate the contribution of the judiciary towards assisting employers and employees interpret the provisions of the Act, but most significantly, to highlight the extent to which the Industrial Court may use its equitable jurisdiction to protect the reproductive function of female employees in Botswana's private sector. <![CDATA[<b><i>Tsambo v Sengadi </i>(244/19) [2020] ZASCA 46 (30 April 2020); <i>Sengadi v Tsambo; In Re: Tsambo </i>(40344/2018) [2018] ZAGPJHC 666; [2019] 1 All SA 569 (GJ) (8 November 2018) Assessing the insurmountable challenge in proving the existence of a customary marriage in terms of section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 and the misplacing of gender inequality</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100005&lng=en&nrm=iso&tlng=en This paper assesses the legal framework pertaining to maternity protection in Botswana's private sector. Botswana is a member of the International Labour Organisation (ILO), but the country has not ratified the ILO Maternity Convention. This notwithstanding, the Government has enacted a legal framework on maternity protection through the Employment Act to guarantee some protection for female private sector employees. This paper critiques this framework through the ILO Maternity Protection Convention lens. Drawing on this comparative analysis, the paper highlights the manner in which Botswana's framework complies with international standards on maternity protection and highlights key points where legislative reform is justified. The analysis also considers the jurisprudence of Botswana's Industrial Court to demonstrate the contribution of the judiciary towards assisting employers and employees interpret the provisions of the Act, but most significantly, to highlight the extent to which the Industrial Court may use its equitable jurisdiction to protect the reproductive function of female employees in Botswana's private sector. <![CDATA[<b>Tackling the "shadow pandemic": the development of a positive duty on adults to report domestic violence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100006&lng=en&nrm=iso&tlng=en When disaster strikes women and young girls are often disproportionately affected in comparison to other societal groups. Over the past three years, it is women that have shouldered much of the burden that the pandemic placed on health and socio-economic conditions. In addition, the high incidence of violence against women during the pandemic has been alarming. Several studies have already been conducted to highlight the root causes of domestic violence. As such, this paper seeks to contribute to the discourse by examining the manner in which the pandemic has aggravated these factors in South African society. The central thesis here stems from the view that women should be recognised as a vulnerable group due to the high rate of femicide and domestic violence. In order to prevent further violence, there is a need for a combined effort from the state and its citizens. This paper, with reference to measures taken in other jurisdictions, seeks to advance the argument for a legal obligation on all adults to report knowledge of domestic violence. It is argued that not only would such a provision have served as an emergency when victims were unable to seek help during the national lockdown but incorporating such a provision into the law is likely to improve the efficacy of state responses to domestic violence. In response to numerous arguments against such a measure, this article will use psychological studies and case law to demonstrate the importance of mandatory reporting in society. <![CDATA[<b>The dilemma of gender inequality in the delict of seduction: A Zimbabwean perspective and some lessons from South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100007&lng=en&nrm=iso&tlng=en In Zimbabwe, the delict of seduction has two species, namely seduction under common law derived from Roman-Dutch law and seduction under customary law. The universal feature in these species is that they were both conceived in patriarchal societies marred with gender inequalities. These inequalities were exhibited, inter alia, in stiffer sexual mores being imposed on women. In these societies, men allotted property rights to themselves over the sexuality of women who were perpetually under their tutelage. Conceptually, it is argued that the delict of seduction is a legal incarnation of these gender inequality-stricken notions. This paper unmasks the plethora of prejudices, challenges and gender inequalities which are engineered by the delict of seduction during litigation and draws on hegemonic masculinity in patriarchal societies as a theoretical framework. <![CDATA[<b>Adjudicative subsidiarity, the "horizontality simpliciter" approach and personality rights: Outlining an integrated and constitutional reading strategy to the law of personality</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100008&lng=en&nrm=iso&tlng=en This article argues that an integrated and constitutional approach to the law of personality is required, as multiple sources of law are applicable to the conception and adjudication of personality rights and these sources must give effect to constitutional imperatives related to the human personality. This article further argues that such an integrated and constitutional approach ought to be premised on the principle of adjudicative subsidiarity and the "horizontality simpliciter" approach (as constitutional reading strategies). Each of these strategies functions at different levels in the law of personality and provides a particular method of integrating legal sources, constitutional values, and fundamental rights to private relationships. At the macro level, denoting the interaction between various sources of law, the principle of adjudicative subsidiarity is aimed at identifying and prioritising sources of law to adjudicate a dispute between private individuals. At the micro level, denoting the application of a legal source between individuals in a private relationship, the horizontality simpliciter approach facilitates the application of both constitutional values and fundamental rights to such a source through its "values.based" and "rights.based" analyses. This article argues ultimately that the principle of adjudicative subsidiarity and the horizontality simpliciter approach are complementary in nature in the sense that both these reading strategies locate a cause of action in a non.constitutional source that is constitutionally developed through the application of constitutional values and fundamental rights. This complementariness is expressed in the positive law as follows: the principle of adjudicative subsidiarity determines which source of law is applicable to the adjudication of a particular personality right infringement whereas the horizontality simpliciter guides the development of the applicable source against constitutional values and fundamental rights. <![CDATA[<b>The drive towards certainty: a short reflection on "law is/as code", complexity, and "the uncontract"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602022000100009&lng=en&nrm=iso&tlng=en This article argues that an integrated and constitutional approach to the law of personality is required, as multiple sources of law are applicable to the conception and adjudication of personality rights and these sources must give effect to constitutional imperatives related to the human personality. This article further argues that such an integrated and constitutional approach ought to be premised on the principle of adjudicative subsidiarity and the "horizontality simpliciter" approach (as constitutional reading strategies). Each of these strategies functions at different levels in the law of personality and provides a particular method of integrating legal sources, constitutional values, and fundamental rights to private relationships. At the macro level, denoting the interaction between various sources of law, the principle of adjudicative subsidiarity is aimed at identifying and prioritising sources of law to adjudicate a dispute between private individuals. At the micro level, denoting the application of a legal source between individuals in a private relationship, the horizontality simpliciter approach facilitates the application of both constitutional values and fundamental rights to such a source through its "values.based" and "rights.based" analyses. This article argues ultimately that the principle of adjudicative subsidiarity and the horizontality simpliciter approach are complementary in nature in the sense that both these reading strategies locate a cause of action in a non.constitutional source that is constitutionally developed through the application of constitutional values and fundamental rights. This complementariness is expressed in the positive law as follows: the principle of adjudicative subsidiarity determines which source of law is applicable to the adjudication of a particular personality right infringement whereas the horizontality simpliciter guides the development of the applicable source against constitutional values and fundamental rights.