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1
Goolam, Nazeem. "Recent Environmental Legislation in South Africa." Journal of African Law 44, no. 1 (2000): 124–28. http://dx.doi.org/10.1017/s0021855300012109.
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Section 24 of the Constitution of the Republic of South Africa, Act 108 of 1996, provides:“Everyone has the right(a) to an environment that is not harmful to their health or well-being; and(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”
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CORDEIRO-RODRIGUES, Luis. "South African Animal Legislation and Marxist Philosophy of Law." Cultura 16, no. 1 (January 1, 2019): 23–28. http://dx.doi.org/10.3726/cul012019.0002.
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Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.
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Govender, Sandra. "Sexual Harassment: The South African Perspective." International Journal of Discrimination and the Law 7, no. 1-4 (September 2005): 229–51. http://dx.doi.org/10.1177/135822910500700409.
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Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication. Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one. The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.
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Storm, Ansia, and Katrina Coetzee. "Towards Improving South Africa's Legislation On Tax Evasion: A Comparison Of Legislation On Tax Evasion Of The USA, UK, Australia And South Africa." Journal of Applied Business Research (JABR) 34, no. 1 (December 29, 2017): 151–68. http://dx.doi.org/10.19030/jabr.v34i1.10106.
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The fight against tax evasion in South Africa is an ongoing battle. The tools available to law enforcement boil down to legislation and the enforcement thereof. The purpose of the study that was done for this article was to compare available legislation of the United States of America, United Kingdom, Australia and South Africa to determine if South Africa’s legislation can be improved. This was done by studying the relevant literature and legislation of all four countries. The findings, that there is some clauses that can be added to improve South Africa’s legislation, were confirmed by analyzing the legislation available. In theory, the results have proven that although South Africa’s legislation can compete with that of the United States of America, United Kingdom and Australia, there is some improvement that can be considered. This is of value to the individuals and professionals who deal with the offence of tax evasion on a daily basis, ensuring that the reviewed legislation will deter perpetrators or that the charges brought against them in the court of law will ensure harsher punishment.
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Clifford-Holmes, Jai K., Carolyn G. Palmer, Chris J. de Wet, and Jill H. Slinger. "Operational manifestations of institutional dysfunction in post-apartheid South Africa." Water Policy 18, no. 4 (January 29, 2016): 998–1014. http://dx.doi.org/10.2166/wp.2016.211.
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At the centre of the water law reform process initiated by the first democratic government of the Republic of South Africa (RSA) lay the challenge of transforming away from apartheid water injustices. Reform culminated in the promulgation of new legislation, regarded internationally as ambitious and forward-thinking legislation reflective of the broad aims of integrated water resource management (IWRM). However, implementation of this legislation has been challenging. This paper analyses institutional dysfunction in water management in the Sundays River Valley Municipality (Eastern Cape Province, RSA). A transdisciplinary approach is taken in addressing the failure of national law and policy to enable the delivery of effective water services in post-apartheid RSA. A case study is used to explore interventions to promote effective water supply, locating these interventions and policies within the legislative structures and frameworks governing the water sector. We suggest that fine-grained institutional analysis together with learning from persistent iterative, adaptive practice, with principled goals intact, offers a pragmatic and achievable alternative to grand-scale policy change.
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Irons, Alastair, and Jacques Ophoff. "Aspects of Digital Forensics in South Africa." Interdisciplinary Journal of Information, Knowledge, and Management 11 (2016): 273–83. http://dx.doi.org/10.28945/3576.
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This paper explores the issues facing digital forensics in South Africa. It examines particular cyber threats and cyber threat levels for South Africa and the challenges in addressing the cybercrimes in the country through digital forensics. The paper paints a picture of the cybercrime threats facing South Africa and argues for the need to develop a skill base in digital forensics in order to counter the threats through detection of cybercrime, by analyzing cybercrime reports, consideration of current legislation, and an analysis of computer forensics course provision in South African universities. The paper argues that there is a need to develop digital forensics skills in South Africa through university programs, in addition to associated training courses. The intention in this paper is to promote debate and discussion in order to identify the cyber threats to South Africa and to encourage the development of a framework to counter the threats – through legislation, high tech law enforcement structures and protocols, digital forensics education, digital forensics skills development, and a public and business awareness of cybercrime threats.
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Hoexter, Cora. "Administrative Justice in Kenya: Learning from South Africa's Mistakes." Journal of African Law 62, no. 1 (February 2018): 105–28. http://dx.doi.org/10.1017/s0021855318000025.
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AbstractThe wording of article 47 of Kenya's Constitution of 2010 is almost identical to that of the section 33 rights to just administrative action in South Africa's 1996 Constitution. Like section 33, article 47 mandates the enactment of legislation to give effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of 2015 was strongly influenced by the equivalent South African legislation, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). South Africa can thus be regarded as a sort of laboratory for Kenyan administrative justice. The aim of this article is to highlight some of the South African experience in relation to section 33 and the PAJA in the hope that Kenya will learn from some of South Africa's mistakes. It argues that the Kenyan courts should avoid following the example of their South African counterparts in allowing their mandated legislation to become almost redundant.
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Greenleaf, Graham. "Solving the Problems of Finding Law on the Web: World Law and DIAL." International Journal of Legal Information 29, no. 2 (2001): 383–419. http://dx.doi.org/10.1017/s0731126500009483.
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Despite its recent development, the Web already contains an astonishing variety of legal materials from dozens of countries. Significant collections of legislation are already available on the Web from over 50 countries. The full text is available on the Web of all legislation from almost all the jurisdictions of the USA, Canada, Australasia, many Latin American countries and some European countries (such as Norway and Germany), and extensive collections from many other European counties (such as the United Kingdom, France, Spain, Portugal). Substantial collections of legislation are available from many developing countries, including India, Turkey, Kazakhstan, South Africa, Vietnam, Zambia, China, Mexico and Israel.
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Rantsane, Ditaba Petrus. "The Origin of Arbitration Law in South Africa." Potchefstroom Electronic Law Journal 23 (November 3, 2020): 1–27. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8963.
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This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
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Abduroaf, Muneer. "Application of the Islamic Law of Succession in South Africa." Obiter 41, no. 2 (October 1, 2020): 396–409. http://dx.doi.org/10.17159/obiter.v41i2.9159.
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Muslims have been living in South Africa for over 300 years. There are over 750 000 Muslims living in South Africa today. These persons constitute a minority religious group in a non-Muslim country. Muslims are required in terms of their religion to follow Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims can however make use of existing South African law provisions in order to apply certain Islamic laws within the South African context. This article looks at the practical application of the Islamic law of succession and administration of estates within the South African context by way of a fictitious scenario. It highlights some of the problem areas when a Muslim testator or testatrix bequeaths his or her estate in terms of Islamic law by means of a will (Islamic will).
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Mupangavanhu, Yeukai. "Towards an Extensive Statutory Protection of Consumers in Timeshare Agreements: A Comparative Perspective." African Journal of International and Comparative Law 29, no. 1 (February 2021): 117–37. http://dx.doi.org/10.3366/ajicl.2021.0353.
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Timeshare property interest has become a major business worldwide. The protection of consumers in various timeshare-related contracts has been characterised by challenges due to outdated laws, lack of appropriate legislation as new products are introduced on the market as well as the inclusion of unfair terms. The European Union (EU) adopted the Timeshare Directive 2008/122/EC which governs a broad range of timeshare-related contracts, namely: timeshare, long-term holiday products, and resale and exchange contracts. In comparison, South Africa and Kenya do not have consolidated legislation that govern timeshare-related contracts. In South Africa, timeshare agreements fall under the Consumer Protection Act 68 of 2008, the Property Time-sharing Control Act 75 of 1993 as well as under common law. In Kenya, the Consumer Protection Act 46 of 2012, which was revised in 2016, governs specific consumer agreements including timeshare contracts. The article compares the position of consumers who enter into timeshare-related services in South Africa, Kenya and the EU. It is argued that the problems faced by consumers who enter into timeshare-related contracts in South Africa and Kenya necessitate legislative protection which should consist of a consolidated statute that specifically regulates such contracts for the attainment of a high level consumer protection.
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Williams, Sope. "The Use of Exclusions for Corruption in Developing Country Procurement: The Case of South Africa." Journal of African Law 51, no. 1 (April 2007): 1–38. http://dx.doi.org/10.1017/s002185530600026x.
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AbstractThe South African public procurement system is regulated by a constitutional framework and legislation applicable to all tiers of government. An interesting feature of the system is that suppliers may be excluded from government contracts for breaches of procurement or anti-corruption legislation. This article critically examines corruption-related exclusions. It is suggested that there is likely to be a number of problems with the implementation of these exclusions. First, it is not clear how effective they will be in meeting the government's anti-corruption policy. Secondly, in respect of the exclusions imposed through a non-judicial process, there are no guidelines to ensure procedural safeguards, and furthermore, these exclusions may lead to delays and costs in the procurement process – especially when it comes to deciding whether persons or firms related to an excluded firm ought to be excluded. Thirdly, there are issues regarding proportionality of the measures. Fourthly, it may be difficult to maintain a consistent approach in deciding whether to exclude under the non-judicial exclusions. In view of these, for the regime to be effective, the South African government must be prepared to bear the attendant financial and procedural burden.
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Young, Stephen. "Consent, custom and international law in South Africa: What Australian lawmakers could learn." Alternative Law Journal 44, no. 3 (May 29, 2019): 197–202. http://dx.doi.org/10.1177/1037969x19853853.
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This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.
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De Lange, Marna. "Water law and human rights - roles and responsibilities." Water Science and Technology 43, no. 4 (February 1, 2001): 143–50. http://dx.doi.org/10.2166/wst.2001.0204.
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This paper focuses on the experience of South Africa in introducing water legislation based on human rights principles (in particular the National Water Act of 1998) and reflects on some practical implications for the implementation of water management in a country with limited water and financial resources.
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Nwafor, Anthony O. "The protection of environmental interests through corporate governance: A South African company law perspective." Corporate Board role duties and composition 11, no. 2 (2015): 8–20. http://dx.doi.org/10.22495/cbv11i2art1.
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The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.
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Bosch, Shannon, and Marelie Maritz. "South African Private Security Contractors Active in Armed Conflicts: Citizenship, Prosecution and the Right to Work." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 7 (June 9, 2017): 70. http://dx.doi.org/10.17159/1727-3781/2011/v14i7a2618.
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South Africa has adopted two pieces of legislation since 1998 aimed at restricting one of the fastest growing sectors of the global economy: the private security industry. Not only is this legislation completely unique, but it appears wholly at odds with international opinion. In this article we place private security contractors (PSCs) under the microscope of international law, exploring the role they play in armed conflicts, and the status afforded them by international humanitarian law (IHL). We address the issue of prohibited mercenarism, questioning whether PSCs should be categorised as mercenaries. We then shift our focus to the South African legislation and discuss the ambit of its application as compared with international law obligations to outlaw mercenaries. We discuss the likelihood of successful prosecution of PSCs, and the potential penalties that PSCs might face in terms of the South African legislation. Lastly we consider the constitutional challenges which might emerge as this legislation, and a proposed amendment to the South African Citizenship Act threaten the constitutionally protected rights of South African PSCs to practise a profession and enjoy citizenship.
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Sibanda Sr., Omphemetse S. "Public Interest Considerations In The South African Anti-Dumping And Competition Law, Policy, And Practice." International Business & Economics Research Journal (IBER) 14, no. 5 (August 24, 2015): 735. http://dx.doi.org/10.19030/iber.v14i5.9376.
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The paper addresses the delicate issue of public interest considerations when determining anti-dumping, competition, and investment measures to balance it with the interest of other interested parties in South Africa. It is particularly argued that the South African anti-dumping legislation must be amended as to clearly mandate the consideration of public interest when imposing an anti-dumping (or safeguard measure). Also, it is argued that the foreign direct investment regime must take into account policy considerations such as black economic empowerment in the public interest. The South Africas competition legislation will be used as an example of the level of convergence that may be achieved having regard to the non-competition factors incorporated in the legislation and potential or perceived difficulties in reconciling a competition analysis with a public interest analysis.
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Nkwe, Marcia, and Mpho Ngoepe. "Compliance with freedom of information legislation by public bodies in South Africa." Government Information Quarterly 38, no. 2 (April 2021): 101567. http://dx.doi.org/10.1016/j.giq.2021.101567.
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Pooe, T. K. "Has it Reinvented Iron Law? South Africa’s Social Industrialisation, not Iron Industrialisation." Law and Development Review 11, no. 2 (June 26, 2018): 467–511. http://dx.doi.org/10.1515/ldr-2018-0027.
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Abstract This paper examines whether the current South African legal framework and subsequent policies post-1994 encourage and have emphatically fostered industrialisation in South Africa primarily and Southern Africa more generally. The primary contention of this paper is that the South African State, unlike fellow Southern African States, has a long history with industrialisation and should have laid the foundations for Southern Africa’s large scale industrialisation trajectory. However, the post-1994 government vision for South Africa has never had a Law and Development philosophy that prioritises and fosters industrialisation. Industrial Promotion in Africa, is understood as being concerned with drafting, strategically implementing and investing in industrially minded action plans. Through the prism of Local Economic Development policy and legislation in the Sedibeng region, this paper contends that industrialisation is still a farfetched endeavour despite industrially minded policies like the New Growth Path and the Industrial Policy Action Plans in South Africa. Moreover, South Africa’s industrialisation agenda is compromised by the Law and Development philosophy of the African National Congress led government. At the core of this philosophy is an overestimation of social justice activity like Human Rights promotion at the expense of Asian Developmental States’ non-human rights approach to economic development activity, like industrialisation in rural and township regions of South Africa.
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Windapo, Abimbola Olukemi, and Jack Steven Goulding. "Understanding the gap between green building practice and legislation requirements in South Africa." Smart and Sustainable Built Environment 4, no. 1 (May 18, 2015): 67–96. http://dx.doi.org/10.1108/sasbe-01-2014-0002.
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Purpose – The purpose of this paper is to examine green building legislation requirements and practices in the construction project execution stage within the context of the South African construction industry. The rationale for this examination rests with the perception that the implementation of green practices (per se) has been recognised as being “behind” the legislation enacted to control the design and construction of green buildings. Design/methodology/approach – The research process consisted of a literature review to identify existing green building legislation and practices applicable to the project execution phase. This was supported by a sequential mixed-method research approach, which involved a survey of contracting companies based in the Western Cape Province of South Africa. Purposive sampling was used to undertake focused interviews with management staff and site operatives. Findings – Research findings established a number of issues, not least: a gap between green building practices and legislation requirements; a high degree of unawareness of green building legislation/practices by construction company stakeholders; selective implementation of health and safety legislative requirements; that management staff had a more “positive” attitude to green building practices than site-based staff who tended to be less motivated and open to such practices. Research limitations/implications – Results from this study are considered generalisable with the sample frame only. Research inference and projections should therefore only be made within this set, and not to the wider population of South African contractors (as this study was limited to the Western Cape Province). Practical implications – Implications from this research are applicable to construction company stakeholders within the population set. Practical considerations include the need to acknowledge a formal commitment to developing a sustainable built environment – especially cognisant of the gap between practices on site and green building legislation requirements. Moreover, this lack of awareness in respect of green building practices and legislation requirements impinges upon several wider areas, not least: construction company stakeholders’ positioning, health and safety practices; managerial and operational staff perceptions, and stakeholders’ willingness and motivation to proactively address these gaps. Social implications – Government bodies and allied professionals in charge of construction industry development are encouraged to consider the implementation of green building legislation requirements on construction sites. This reflection should encourage engagement through formative legislative provision and transparent awareness campaigns. Originality/value – This work is original insofar as it directly addresses the alignment of legislation to current practices within the context of the South African construction industry. However, similar exercises have been undertaken on green building legislation in other countries such as USA, UK and Australia.
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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.
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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.
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Amodu, Nojeem. "Stakeholder Protection and Corporate Social Responsibility from a Comparative Company Law Perspective: Nigeria and South Africa." Journal of African Law 64, no. 3 (September 17, 2020): 425–49. http://dx.doi.org/10.1017/s0021855320000212.
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AbstractThere have been notable legislative advancements, as well as improvements in corporate governance codes, aimed at protecting stakeholder rights. However, how much protection have they really afforded stakeholders against socially irresponsible corporate behaviour? This article undertakes a comparative analysis of the legal framework underlying South Africa's stakeholder-inclusive approach and Nigeria's environmental, social and governance or sustainability corporate reporting. It identifies a misplaced philosophical background as well as policy misalignment of corporate governance codes and primary corporate law as critical factors that undermine efforts to embed responsible corporate behaviour in order to safeguard the interests of qualified and legitimate stakeholders. It recommends specific amendments to address the ideological defect and align corporate governance codes with primary corporate legislation in these two countries.
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Fourie, E. S. "Non-Standard Workers: The South African Context, International Law and Regulation by The European Union." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 4 (July 4, 2017): 109. http://dx.doi.org/10.17159/1727-3781/2008/v11i4a2787.
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The current labour market has many forms of employment relations that differ from full-time employment. "Atypical," "non-standard," or even "marginal" are terms used to describe these new workers and include, amongst others, parttime work, contract work, self-employment, temporary, fixed-term, seasonal, casual, piece-rate work, employees supplied by employment agencies, home workers and those employed in the informal economy. These workers are often paid for results rather than time. Their vulnerability is linked in many instances to the absence of an employment relationship or the existence of a flimsy one. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. They should, in theory, have the protection of current South African labour legislation, but in practice the unusual circumstances of their employment render the enforcement of their rights problematic. The majority of non-standard workers in South Africa are those previously disadvantaged by the apartheid regime, compromising women and unskilled black workers. The exclusion of these workers from labour legislation can be seen as discrimination, which is prohibited by almost all labour legislation in South Africa. This contribution illustrates how the concept of indirect discrimination can be an important tool used to provide labour protection to these workers. The purpose of this article is to explore the scope of the extension of labour rights to non-standard workers in the context of South African labour laws and the international framework.
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Andanda, Pamela. "Striking a Balance between Protecting Trademarks and Public Health Interests in Combating Trade in Counterfeit Medicines: Lessons from Kenya and South Africa." Journal of African Law 60, no. 2 (February 9, 2016): 312–38. http://dx.doi.org/10.1017/s0021855315000297.
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AbstractTrade in counterfeit medicines raises serious public health concerns. However, efforts geared towards combating trade in counterfeit medicines tend to focus more on the protection of trademarks, which may not necessarily protect the public from the adverse consequences of using counterfeit medicines. This arises from differences in the meaning of “counterfeit” in the intellectual property and public health contexts. This article analyses the extent to which the anti-counterfeiting legislation and institutions in two African countries, Kenya and South Africa, are capable of combating trade in counterfeit medicines in a manner that protects both the public and brand name owners. The article examines the anti-counterfeiting legislation and institutions that ensure compliance with the standards for marketing medicines that are in place in these countries, in order to draw lessons on how they can be used to balance the protection of public health interests and trademarks.
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Schlemmer, Engela C. "Dispute Settlement in Investment-Related Matters: South Africa and the BRICS." AJIL Unbound 112 (2018): 212–16. http://dx.doi.org/10.1017/aju.2018.63.
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Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?
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Rautenbach, Christa. "Muslim personal law and the meaning of "law" in the South African and Indian constitutions." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 2, no. 2 (July 10, 2017): 50. http://dx.doi.org/10.17159/1727-3781/1999/v2i2a2895.
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The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.
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Iwu, Chux Gervase. "Kulula.com, South Africa – a case study." Emerald Emerging Markets Case Studies 1, no. 1 (January 1, 2011): 1–3. http://dx.doi.org/10.1108/20450621111124433.
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Subject area Human resource management; primarily employment law impacting on employment relations. Study level/applicability Second year (or 200 level) students up to post graduate programmes in Business Management, Human Resources Management and Law. Case overview The world is still fascinated by South Africas transition to democracy; what with stories of massacre (Sharpeville, etc.) of those who dared challenge white supremacy and the battle for prominence between the African National Congress and the Inkatha Freedom Party. Since gaining independence, South Africa has attracted investors from far and wide. Now and again, one hears news stories that report about forms of disgruntlement from whites and blacks, respectively. In some quarters, you may hear stories suggesting the white community has not completely gotten over their resentment of black leadership. In some other quarters, you are likely to hear the blacks insist that the South African land space belongs to them and as a result they should be in charge of the distribution of wealth, one must understand that much of the wealth of the South African land still resides with the Whites. In what is considered as a fair attempt to integrate all the citizens of the republic, the new government of Nelson Mandela came up with a constitution that is hailed as perhaps the best in the world. Carved out of the United Nations Human Rights Charter, it proposes a free society that recognizes all its inhabitants regardless of colour. Within the world of work, the constitution identifies seven very important statutes that not only give effect to and sustain the republics membership of the International Labour Organisation, but also help to realize and regulate the fundamental rights of workers and employers. Main learning objective Test students understanding of the legal statutes that pertain to employment relations and human resource management in South Africa. Expected learning outcomes Understand the legislation affecting management and staff. Understand and apply the principles of recruitment and selection of staff. Identify and apply the options open to managers in staff training and development. Identify and apply the appropriate performance management systems. Understand and apply the strategic human resource planning process. Supplementary materials Teaching note.
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Fortin, Elizabeth. "Struggles with activism: NGO engagements with land tenure reform in post-apartheid South Africa." Journal of Modern African Studies 48, no. 3 (August 18, 2010): 383–411. http://dx.doi.org/10.1017/s0022278x10000340.
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ABSTRACTIn 2004, a long-awaited piece of post-apartheid legislation, the Communal Land Rights Act – to reform the land tenure of those living in the former ‘homelands’ of South Africa – was passed into law unanimously by parliament. This unanimity, however, conceals the extent to which the process towards this moment was deeply contested. Exploring the efforts by land sector NGOs to secure legitimacy in their engagements with this process reveals the extent to which wider power relations and contestations have determined their positioning. Those within the non-governmental land sector who opposed the legislation pitted themselves against African National Congress politicians and high-profile traditional leaders. However, the adoption of a Mamdani-inspired discourse to contest such politics and oppose the proposed legislation contributed to reinscribing narrow readings of knowledge considered to be legitimate. Their engagements were also shaped by changes in the NGO sector. Reduced funding for land sector NGOs and an increasingly ambivalent relationship between them and government contributed to contestations between NGOs and among people working within them. Their strategic engagements in such wider and internal politics influenced both the frames within which such policy change could be debated and the ways in which individuals working for NGOs consequently positioned themselves in relation to their constituents.
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Mohamed, Raeesah, Karunanidhi Reddy, and P. M. Naidoo. "The Implications of Consumer Protection Legislation for Hotels and Guests in South Africa." Journal of Economics and Behavioral Studies 9, no. 2(J) (May 18, 2017): 33–45. http://dx.doi.org/10.22610/jebs.v9i2(j).1648.
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During the apartheid era, consumers in South Africa, based on their race and ethnicity, were restricted when concluding contracts, as there was no open market trade. As consumers, hotel guests could also be victims of unfair business practices. Hotels use standard form contracts that may include unfair terms that favour the business and which are over-protective of business interests. A significant percentage of the population have low literacy levels, which severely disadvantage them when it comes to understanding the content and consequence of contracts. The Consumer Protection Act (CPA) introduces wide-ranging legal measures to protect consumers, including hotel guests, from exploitation and abuse in the marketplace and sets out comprehensive obligations for hotels. This article provides a descriptive critique based on literature and describes the challenges faced by hotel guests and discusses the implications of the Act for hotels and guests. It concludes that not only does the CPA advocate ethical business practices that are mandatory for hotels, but it also introduces a range of rights and protection for guests as consumers. The CPA has introduced a shift in contract law from a standpoint which allowed the parties the freedom to choose the content of the contract to one where fairness and transparency is imperative, as protection in terms of legislation compensates for the weaker bargaining position of the consumer.
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Mohamed, Raeesah, Karunanidhi Reddy, and P. M. Naidoo. "The Implications of Consumer Protection Legislation for Hotels and Guests in South Africa." Journal of Economics and Behavioral Studies 9, no. 2 (May 18, 2017): 33. http://dx.doi.org/10.22610/jebs.v9i2.1648.
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During the apartheid era, consumers in South Africa, based on their race and ethnicity, were restricted when concluding contracts, as there was no open market trade. As consumers, hotel guests could also be victims of unfair business practices. Hotels use standard form contracts that may include unfair terms that favour the business and which are over-protective of business interests. A significant percentage of the population have low literacy levels, which severely disadvantage them when it comes to understanding the content and consequence of contracts. The Consumer Protection Act (CPA) introduces wide-ranging legal measures to protect consumers, including hotel guests, from exploitation and abuse in the marketplace and sets out comprehensive obligations for hotels. This article provides a descriptive critique based on literature and describes the challenges faced by hotel guests and discusses the implications of the Act for hotels and guests. It concludes that not only does the CPA advocate ethical business practices that are mandatory for hotels, but it also introduces a range of rights and protection for guests as consumers. The CPA has introduced a shift in contract law from a standpoint which allowed the parties the freedom to choose the content of the contract to one where fairness and transparency is imperative, as protection in terms of legislation compensates for the weaker bargaining position of the consumer.
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Venter, Francois. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 4 (July 4, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2008/v11i4a2790.
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Professor Dana van der Merwe of the University of South Africa (UNISA) delves into the impact of the information era on the law, drawing distinctions with the aid of legal philosophy between data, information and intelligence. o In similar vein Dr Tanya du Plessis of the University of Johannesburg investigates the impact of information and communication technology on the practice of law and knowledge management in law firms. o Professor Anneliese Roos of UNISA follows with an in-depth and comparative exposition of statutory data protection with specific reference to the legislation of New Zealand, illustrating important disadvantages for participants in the information technology arena in South Africa.
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Kruger, Hester B., and Hennie Oosthuizen. "South Africa – Safe Haven for Human Traffickers? Employing the Arsenal of Existing Law to Combat Human Trafficking." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (May 22, 2017): 282. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2466.
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Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon.
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Mubanga, Raphael O., and Kwaku Kwarteng. "A comparative evaluation of the environmental impact assessment legislation of South Africa and Zambia." Environmental Impact Assessment Review 83 (July 2020): 106401. http://dx.doi.org/10.1016/j.eiar.2020.106401.
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Fambasayi, Rongedzayi, and René Koraan. "Intermediaries and the International Obligation to Protect Child Witnesses in South Africa." Potchefstroom Electronic Law Journal 21 (April 16, 2018): 1–30. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a2971.
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This contribution examines the protection of child witnesses in criminal proceedings under international and regional laws. This consideration is made against the background that the Constitution of the Republic of South Africa, 1996 proclaims in section 39(1)(b) that in interpreting the Bill of Rights and any legislation a court or tribunal must consider international law. The United Nations Convention on the Rights of the Child (1989), the African Charter on the Rights and Welfare of the Child (1990) and the United Nations Guidelines on Justice for Child Victims and Witnesses to Crime (2005) do not make specific reference to child witnesses and how they should be treated. However, it is argued that the guiding principles enshrined therein provide for the protection of child witnesses, particularly the best interests of the child and the right to participate. In addition, the article enumerates and explains the rights of child witnesses as provided for in the UN Guidelines. International law will be discussed first, and then South African law, to establish if the international obligation to protect child witnesses is being adhered to.
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Tredoux, Liezel G., and Kathleen Van der Linde. "The Taxation of Company Distributions in Respect of Hybrid Instruments in South Africa: Lessons from Australia and Canada." Potchefstroom Electronic Law Journal 24 (January 12, 2021): 1–36. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a6781.
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Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments.
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Knobel, J. C. "The Conservation Status of Eagles in South African Law." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 4 (May 17, 2017): 179. http://dx.doi.org/10.17159/1727-3781/2013/v16i4a2414.
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This contribution is an introductory survey and preliminary evaluation of the conservation status of eagles in South African law. The methodology is primarily an interdisciplinary literature study of legal texts and texts from the natural sciences. Eagles are some of the largest and most powerful avian predators, and the human response to their presence is dualistic and polarised. At the one extreme, many people admire eagles, while at the other extreme they are perceived as a threat to economic and other interests, and may even be actively persecuted in a conviction that they are vermin. This duality in the human perception of eagles is also prevalent in South Africa and complicates their conservation. The mobility of eagles and other birds of prey means that they cannot be restrained by fencing national parks and other protected areas, and this heightens the likelihood of their entering into conflict with human interests. The conservation problems faced by eagles in South Africa can broadly be divided into direct and indirect threats. Direct threats include the intentional killing of eagles, and trade in eagles and their eggs. Indirect threats include non-targeted poisoning (where poisoned bait is used to control other predators, but eagles find the bait, feed on it, and succumb); habitat loss; mortality induced by dangerous structures; and disturbance. The legal status of eagles is influenced by a large body of legislative provisions, ranging from international and regional legal instruments, through national legislation, to provincial legislative measures. An overview of these provisions is given, with concise explanations of how they apply to the legal status of eagles and other birds of prey in South Africa. The conservation status of eagles in South African law is subsequently evaluated by considering the contribution of the applicable laws to three main types of conservation interventions. In respect of the first, habitat preservation, the relevant legal provisions contribute to an impressive array of conserved habitats in national parks and other protected areas. However, the mobility of eagles, and the fact that some species occur mainly outside protected areas, make it imperative for eagles also to be afforded legal protection outside of protected areas. In respect of the second type of intervention, namely management activities to conserve the species in their habitats, an inquiry is made into how the law addresses the threats of the intentional killing of eagles; trade in eagles and their eggs; non-targeted poisoning; mortality induced by dangerous structures; and disturbance. The protection is found to be sound in principle. In respect of the third and most intensive intervention, captive breeding, a regulatory framework is in place, but no such intervention on eagle species is known to be operative in South Africa. In conclusion a number of recommendations are made. The existing laws can be improved by aligning the legal status of species with their Red List status; listing all bird of prey species that are not Critically Endangered, Endangered, or Vulnerable, as Protected for the purpose of national environmental legislation; and, in the medium rather than the short term, considering the imposition of legal obligations on electricity suppliers to implement measures that will mitigate mortalities on electricity structures. Better application of the existing laws could be achieved by improving compliance and enforcement, and by facilitating the optimal use of Biodiversity Management Plans, environmental research, and environmental education.
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Zaal, Frederick Noel, and Justin D'Almaine. "Inheritance Rights for Posthumously Procreated Children: A Growing Challenge for the Law." Potchefstroom Electronic Law Journal 21 (June 21, 2018): 1–30. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4211.
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Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.
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Büchner-Eveleigh, Mariana, and Annelize Nienaber. "Gesondheidsorg vir Kinders: Voldoen Suid-Afrikaanse Wetgewing Aan die Land se Verpligtinge Ingevolge die Konvensie Oor die Regte van die Kind en die Grondwet?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (May 22, 2017): 102. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2459.
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Included in the Convention on the Rights of the Child, 1989 (UN Children's Convention) is the right of children to the highest attainable standard of health. In terms of article 4 of the UN Children's Convention, in implementing the UN Children's Convention state parties must "undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention". South Africa showed its commitment to protecting and promoting children's health when it ratified the UN Children's Convention and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to giving legislative effect to the protection and promotion of children's health by promulgating the National Health Act 61 of 2003, the Children's Act 38 of 2005 and the Mental Health Care Act 17 of 2002. The article evaluates existing policy and legislation affecting child health in order to assess how well South African legislation addresses the issue of children's healthcare rights and whether or not it complies with its international law and constitutional obligations in this regard. The article concludes that although much legislation exists, none provides comprehensively for children's healthcare rights, and there are many gaps in existing legislation. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of healthcare services and nutrition. Further, there is a complete lack of legislation which protects the health needs of children with disabilities. In order to ensure that the health rights of children are protected and promoted, we propose more comprehensive legislative protection.
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Ntshane and Gambiza. "Habitat assessment for ecosystem services in South Africa." International Journal of Biodiversity Science, Ecosystem Services & Management 12, no. 4 (October 1, 2016): 242–54. http://dx.doi.org/10.1080/21513732.2016.1217935.
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Biodiversity is the foundation of life-support systems on earth and underpins the delivery of ecosystem services (ES) important for human well-being. The loss of biodiversity worldwide, however, remains one of the most daunting challenges. Among the major causes of biodiversity loss is habitat loss due to transformation of land to agricultural, mining and urban areas. We applied the Integrated Valuation of Ecosystem Services and Trade-offs (InVEST) biodiversity modelling tool to assess the condition of habitats to support the delivery of ES in a biosphere reserve (BR) in South Africa. Results indicated that 72% of the surveyed habitats were of high quality to provide the necessary services. However, some of the habitats were found to be affected by threats as follows: low (0–20%) to moderate (20–32%) habitat loss was recorded in habitats adjacent to mining and plantation areas, and high (32–56%) to severe (56–95%) habitat loss was recorded in habitats in close proximity to urban and cultivated areas. At least 56% of the vegetation types found in the study area were threatened by transformation to agriculture, mining and urban areas. We strongly recommend that existing biodiversity policies and legislation should be enforced to avoid habitat loss and degradation.
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Botes, Anri. "The History of Labour Hire in Namibia: A Lesson for South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 1 (April 26, 2017): 505. http://dx.doi.org/10.17159/1727-3781/2013/v16i1a2320.
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Labour hire, the practice of hiring out employees to clients by a labour broker, has been a part of Namibia’s history since the early 1900s in the form of the contract labour system. This form of employment was characterized by inhumanity and unfair labour practices. These employees were subjected to harsh working conditions, inhumane living conditions and influx control. The contract labour system continued until 1977, when it was abolished by the General Law Amendment Proclamation of 1977. It was during the 1990s that the hiring out of employees returned in the form of labour hire. It continued in this form without being regulated until it was banned in the Namibian Labour Act of 2007. In 2009 Africa Personnel Services, Namibia’s largest labour broker, brought a case before the court against the Namibian Government in an attempt to have the ban nullified on grounds of unconstitutionality. It argued that the ban infringed on its right to carry on any trade or business of its choice as contained in section 21(1)(j) of the Constitution of the Republic of Namibia. APS triumphed. It was not until April 2012 that new legislation was promulgated in order to officially lift the ban and to regulate labour hire in its current form. This new legislation came into force in August 2012. Various very important provisions are contained in the Labour Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment Services Act 8 of 2011, containing provisions for the regulation of labour brokers as juristic persons per se, was also introduced and came into force in September 2012. The aim of this note is to serve as a lesson to the South African government as to what could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the employees of a labour broker should be protected. In this regard the history of labour hire and the current strides in Namibia cannot be ignored.
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Stacey, Richard. "Falling Short of Constitutional Norms: Does “Normative (In)Congruence” Explain the Courts' Inability to Promote the Right to Water in South Africa?" Law & Social Inquiry 43, no. 03 (2018): 796–826. http://dx.doi.org/10.1111/lsi.12273.
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In South Africa, municipal noncompliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis,” arguing that the rule of law can accommodate social justice if it demands normative congruence alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of normative incongruence that impedes the pursuit of social justice, even as courts compel congruence with formal rules.
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Roos, A. "Personal Data Protection in New Zealand: Lessons for South Africa?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 4 (July 4, 2017): 61. http://dx.doi.org/10.17159/1727-3781/2008/v11i4a2786.
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In 1995 the European Union adopted a Directive on data protection. Article 25 of this Directive compels all EU member countries to adopt data protection legislation and to prevent the transfer of personal data to non-EU member countries (“third countries”) that do not provide an adequate level of data protection. Article 25 results in the Directive having extra-territorial effect and exerting an influence in countries outside the EU. Like South Africa, New Zealand is a “third” country in terms of the EU Directive on data protection. New Zealand recognised the need for data protection and adopted a data protection Act over 15 years ago. The focus of this article is on the data protection provisions in New Zealand law with a view to establishing whether South Africa can learn any lessons from them. In general, it can be said that although New Zealand law does not expressly recognise a right to privacy, it has a data protection regime that functions well and that goes a long way to providing adequate data protection as required by the EU Directive on data protection. Nevertheless, the EU has not made a finding to that effect as yet. The New Zealand data protection act requires a couple of amendments before New Zealand might be adjudged ‘adequate’. South Africa’s protection of the right to privacy and identity is better developed and more extensive than that of New Zealand. Privacy is recognised and protected in the law of delict and by the South African Constitution. Despite South Africa’s apparently high regard for the individual’s right to privacy and identity and our well-developed common and constitutional law of privacy, South Africa does not meet the adequacy requirement of the EU Directive, because we do not have a data protection Act. This means that South African participants in the information technology arena are at a constant disadvantage. It is argued that South Africa should follow New Zealand’s example and adopt a data protection law as soon as possible.
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Allison Anthony. "Regulating Construction Procurement Law in South Africa – Does the New Framework for Infrastructure Delivery and Procurement Management Undermine the Rule of Law?" Obiter 42, no. 1 (May 2, 2021): 136–47. http://dx.doi.org/10.17159/obiter.v42i1.11061.
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Recently, there have been numerous challenges in the legal regulation of construction procurement in South Africa. The Construction Industry Development Board and the National Treasury have brought about a number of new rules in the form of standards and frameworks in order to remove any contradictions and misalignment with applicable legislation. This article looks at the changes that have taken place in the regulation of construction procurement law and whether the new rules indeed assist in removing the challenges posed by previous rules. The research question to be answered is whether the new rules are in fact lawful.
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Olivier, Marius, and Avinash Govindjee. "The Inter-Relationship between Administrative Law and Labour Law: Public Sector Employment Perspectives from South Africa." Southern African Public Law 30, no. 2 (December 1, 2017): 319–46. http://dx.doi.org/10.25159/2522-6800/3583.
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The legal position of public sector employees who challenge employment decisions taken by the state or organs of state in its/their capacity as employer in South Africa has long been problematic. Even though at least four judgments by the Constitutional Court of South Africa have considered whether employment-related decisions in the public sector domain do or could amount to administrative action and whether administrative law and/or labour law should be applicable for purposes of dispute resolution, legal uncertainty remains the order of the day due to a combination of factors. The authors assess whether (and to what extent) the rich South African administrative-law jurisprudence remains of importance in relation to the public employment relationship, bearing in mind the applicable legal considerations, including the inter-relatedness, interdependence and indivisibility of the range of applicable fundamental constitutional rights. Considering the debate in other jurisdictions on this issue, the authors develop a paradigm for situating different employment-related disputes as matters to be decided on labour and/or administrative-law principles in South Africa. This requires an appreciation, to the extent relevant, of the unique nature public sector employment relationships and a detailed investigation of the applicable legal sources and precise parameters of the cases already decided in the country. The position of employees deliberately excluded from the scope of labour legislation is analysed, for example, as is the legal position of high-ranking public sector employees. The outcome of the investigation is important for determining the legal principles to be applied in cases involving public sector employees in their employment relationship, and for purposes of determining the question of jurisdiction. Recent cases, for example where the courts have permitted the state, as employer, to review its own disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the basis that this amounts to administrative action which is reviewable, are also examined in the light of the uncertainty regarding the precise nature and scope of the review.
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De Bruyn, Michelle. "The Protection Of Personal Information (POPI) Act - Impact On South Africa." International Business & Economics Research Journal (IBER) 13, no. 6 (October 31, 2014): 1315. http://dx.doi.org/10.19030/iber.v13i6.8922.
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South Africa has received its own data protection legislation - the Protection of Personal Information (POPI) Act - in November 2013 and is expecting the government to appoint an Information Regulator to enforce the letter of the law. Until then, South African businesses will have time to get their house in order, but uncertainty exists as to how businesses will be affected when this happens. It is anticipated that the enforcement activities by the Information Regulator will be similar to how it is done by the Information Commissioners Office (ICO) in the United Kingdom. The ICO has been enforcing compliance with the Data Protection Act (DPA) of the United Kingdom since it obtained its enforcement powers in April 2010. This article summarises all actions taken by the ICO from April 2010 until the end of December2013 to determine the industries most affected, the contraventions with the highest frequency and, where applicable, the highest monetary fines. This article should provide some insight into what South African businesses can expect after the Information Regulator is appointed and starts to enforce the law. It will also enable them to focus their attention on the safeguarding of business areas with increased data protection risks as well as provide some counter measures that can be taken to prevent punishable contraventions.
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BROWNLIE, SUSIE, CHARL DE VILLIERS, AMANDA DRIVER, NANCY JOB, AMREI VON HASE, and KRISTAL MAZE. "SYSTEMATIC CONSERVATION PLANNING IN THE CAPE FLORISTIC REGION AND SUCCULENT KAROO, SOUTH AFRICA: ENABLING SOUND SPATIAL PLANNING AND IMPROVED ENVIRONMENTAL ASSESSMENT." Journal of Environmental Assessment Policy and Management 07, no. 02 (June 2005): 201–28. http://dx.doi.org/10.1142/s1464333205001992.
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The Cape Floristic Region (CFR) and Succulent Karoo are global biodiversity hotspots. The CFR is one of six plant kingdoms worldwide. The CFR and most of the Succulent Karoo lie within South Africa. South Africa has ratified the Biodiversity Convention, and must accordingly safeguard its biodiversity. Environmental assessment (EA) can help to achieve this end. Environmental legislation in South Africa requires EA for activities at project, not strategic level. However, strategic environmental assessment has been mandatory since 2000 for preparing municipal spatial development frameworks (SDFs). By setting targets for ecosystem conservation and providing thresholds of significance, systematic conservation planning can make a significant contribution to the sound preparation of SDFs, and effective EA at planning and project levels. In South Africa, the integration of systematic conservation planning with spatial planning and EA is recent. Based on examples, the main challenges for the future are identified.
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Briers, N., and J. J. Dempers. "Ethical Issues Surrounding the Use of Modern Human Remains for Research in South Africa." Journal of Empirical Research on Human Research Ethics 12, no. 1 (February 2017): 45–54. http://dx.doi.org/10.1177/1556264616688973.
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Chapter 8 of the South African National Health Act 61 of 2003 (NHA) that deals with the donation of human tissue was promulgated in 2012. The new Act is perceived to impose restrictions on low-risk research involving human remains. This study aimed to identify the issues raised by a research ethics committee (REC) when reviewing protocols where human remains are used as data source. REC minutes from 2009 to 2014 were reviewed, and issues raised by the committee were categorized. In total, 127 protocols submitted to the committee over 6 years involved human remains. Queries relating to science (22.2%) and administration (18.9%) were the most common, whereas queries relating to legal issues constituted only 10.2%. Ethical issues centered on informed consent regarding sensitive topics such as HIV, DNA, and deceased children. The change in legislation did not change the number or type of legal issues identified by the REC.
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Steenkamp, Rochine Melandri. "Municipal Instruments in Law for Cultural Heritage Protection: A Case Study of the City of Cape Town Metropolitan Municipality." Potchefstroom Electronic Law Journal 24 (September 1, 2021): 1–34. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a6435.
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This article questions the extent to which municipal bylaws aimed at cultural heritage resource management (CHRM) reflect the objectives of the Constitution of the Republic of South Africa, 1996 (the Constitution), national legislation and the discourse on cultural governance more broadly. In terms of Schedule 4A of the Constitution, the function of "cultural matters" is not an original power of local government. It is a function assigned to the national and provincial spheres. Municipalities are assumed, however, to have a responsibility to execute aspects of this function that may be incidental to other typical local government functions. This view finds support in the interpretation of various rights in the Constitution (e.g. sections 15, 30, 31 and 24) as well as the heritage, environmental and local government framework legislation and policy documents of South Africa. The premise of this article is that cultural heritage resource management by way of instruments such as bylaws promotes the overarching objectives of local government, such as sustainable development, while also promoting the rights to culture, language and religion, amongst others. To expand on its theoretical basis, this article provides a critical assessment of the bylaws of the City of Cape Town Metropolitan Municipality
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Steyn, Erika, Johan C. Groeneveld, Jorge Santos, Alke Kruger, Xolani I. Mselegu, and Michael H. Schleyer. "Trends in a recreational fishery for mussels in eastern South Africa, based on postal, telephone and online surveys." Ocean & Coastal Management 179 (September 2019): 104863. http://dx.doi.org/10.1016/j.ocecoaman.2019.104863.
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Jamil Ddamulira Mujuzi. "Electricity Theft in South Africa: Examining the Need to Clarify the Offence and Pursue Private Prosecution?" Obiter 41, no. 1 (April 1, 2020): 78–87. http://dx.doi.org/10.17159/obiter.v41i1.10549.
Full textAbstract:
Electricity theft is one of the challenges with which South African government-owned power-distribution company Eskom is grappling. Eskom has lost billions of rands in annual revenue owing to electricity theft. Different strategies are in place to combat electricity theft. However, in South Africa, electricity theft is not a statutory offence. This contrasts with the approach adopted in countries such as China, Canada, India, Australia and New Zealand, where legislation provides for such an offence. Although electricity theft is not a statutory offence, prosecutors would like electricity thieves to be punished. In this context, there are conflicting High Court decisions on whether electricity theft is a common-law offence or indeed an offence at all. The purposes of this article are: to highlight the problem of electricity theft in South Africa and the conflicting jurisprudence from the High Court on whether electricity theft is an offence; to recommend that Parliament amend legislation to criminalise electricity theft specifically; and also to empower Eskom to institute prosecutions against those who are alleged to have stolen electricity.