The potential influence of Sustainable Development Goal 6.1 in the South African legislative context, pp 1-20
Author/s: Kasker, Muhammad Sameer
Water is at the very core of sustainable development, as it is critical for a thriving people and planet. In recent years, there have been increasingly urgent warnings of a global water crisis. From an international perspective, the most recent development dealing with water access, conservation and management is Sustainable Development Goal 6 (SDG 6), which forms part of the 2030 Agenda for Sustainable Development. This article focuses on the domestic implementation of SDG 6.1 against the backdrop of current South African legislation dealing with water access and management. The aim of the article is to analyse SDG 6.1 and determine if and how it can be incorporated into South African water legislation in order to give effect to it and grant it legal legitimacy in the domestic context.
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Impediments to the democratic participation of foreign nationals in public-school governance, pp 21-49
Author/s: Kavuro, Callixte
In their efforts to promote the constitutional values of equality, human dignity and freedom, public-school laws and policies emphasise non-discrimination in the admission of learners and democracy in the professional management and governance of public schools. The democratisation of post-apartheid public schools must comply with democratic participation and representativity. Whereas democratic participation can be realised through the exercise of active voting rights, democratic representativity can be achieved through the exercise of passive voting rights. This article explores notions of democracy, non-discrimination, and representativity so as to examine and highlight factors that may restrict or inhibit the participation of foreign nationals in school governing body elections.
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The prevalence of cybercrimes and hacking incidents and their impact on the confidentiality of documents in civil proceedings, pp 50-75
Author/s: Mabeka, Nombulelo Queen
Confidentiality is important in legal practice as it obligates legal practitioners to protect clients’ information. It is often linked to the right to privacy entrenched in section 14 of the Constitution of the Republic of South Africa, 1996. The link is made on the basis of clients’ entitlement to attorney-client confidentiality. Furthermore, the rules of courts in civil proceedings require legal practitioners to include clients’ personal or confidential information in court documents, including their identity numbers. The requirement of clients’ personal information in court documents is found in particular in Rule 3(A)(1)(b)(i) of the Uniform Rules of Court, 2009 as amended. This personal information is uploaded online in the CaseLines system, as required by Practice Direction 1 of 2023, a situation which poses a significant risk because such information may be hacked and used to commit cybercrimes. The article examines current legislation, the respective rules of court, and the approach followed by the courts, in order to determine whether confidentiality does indeed exist in civil proceedings.
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Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32, pp 76-101
Author/s: Van Coller, Arthur
The South African Constitutional Court was recently tasked with considering whether the ‘just and equitable’ requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates’ Court. The Magistrates’ Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates’ Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the inconsistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates tension between the rights of private landowners and unlawful occupiers is not constructive. Ideally, evictions should be resolved by enforcing a potentially homeless person’s right to access adequate housing by holding the state to account for its constitutional obligations.
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A critique of the efficacy of the right to shelter for street children in Kenya, pp 102-128
Author/s: Ndimurwimo, Leah Alexis; Wanjala, Esther Nasimiyu; and Makori, Asande Felix
The right to housing or shelter is a fundamental right that has been given recognition at national, regional, and international levels. In Kenya, everyone’s right to access adequate housing and basic shelter is enshrined in the Constitution of Kenya, 2010 and various international and regional human instruments, but there is no specific legislation or policy that caters to the right of street families and children to access housing or shelter. The gap that exists in law and policy deepens the vulnerability of street families and children, who are being left behind and not included in governmental socio-economic programmes and interventions targeting vulnerable and marginalised persons. For example, street children are often excluded from planning, budgeting, and national decisions relating to socio-economic rights that include shelter. This article considers how Kenya’s street children’s right to shelter may be protected. Accordingly, it recommends measures that could be taken to protect their right to shelter, as well as other socio-economic rights, and thereby create a pathway to realising the values of equality and human dignity enshrined in the Constitution.
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A turning-point for transitional justice? Political violence in Zimbabwe, and transformative justice as a way forward, pp 129-151
Author/s: Chidhawu, Tinotenda
Since the year 2000, elections in Zimbabwe have been hotly disputed and marred by violence. Victims of politically orchestrated violence have received neither apology nor compensation from the government. Whilst transitional justice mechanisms such as the due processes of law, closure for victims, indemnification, and the restructuring of state institutions are essential to ensure justice, there is a need to go beyond the legal system and focus on socio-economic issues. Transitional justice’s emphasis on the state and institutions is not enough, given that communities and citizens’ concerns due to weak statehood are seldom considered. This article engages with key aspects of transitional justice and, aligning itself with voices from the margins, places greater emphasis on transformative justice, which it regards as a step towards grassroots reconciliation and the prevention of further rights violations. Transformative justice emphasises peacebuilding initiatives, as well as conflict transformation and development, in the interests of securing sustainability in the future. The study does not dismiss or reject transitional justice as a field of practice and scholarship, but argues rather that transformative justice can complement it. While transitional justice should be applauded for identifying the core themes that characterise and establish a terminus a quo for ensuring justice, the dilemmas raised in allied disciplines and contemporary scholarship and practice call for a broader framework informed by an intersectional analysis of the complexities and contradictions of state–society relations.
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The evolving developmental role of the state as public trustee of South Africa’s natural resources and property, pp 152-173
Author/s: September-Van Huffel, Anthea-Lee
Through its environmental laws and policies, the state needs to ensure the ecologically sustainable development and use of South Africa’s natural resources, while promoting justifiable economic and social development. Thus, the view that property owners may not use their property in ways that prejudice the community and other peoples’ interests in environmental resources must be considered. This corresponds with the acknowledged stance that property, in its widest sense, has a 'public or civic or proprietary' aspect to it that transcends individual economic interests, and that private property ownership should be inherently limited for the benefit of society at large. Property is, therefore, intimately bound up with the socio-economic security and well-being of all South African citizens. Since a developmental state actively guides economic development and the use of the country’s resources to meet the needs of the people, the developmental role of the state should serve the public interest. In South Africa, though, the public function of property is frequently usurped by the government’s developmental-state ambitions and influenced by political and economic considerations that affect the socio-economic fabric of the country. The South African government, as public trustee of the nation’s natural resources, must regulate access to and use of natural resources by exercising its stewardship ethic. However, this is not always the case when it comes to critical resources like water and land – a situation that perpetuates the historically imbalanced distribution of wealth in South Africa.
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Eliminating racial discrimination of employees: An assessment of the Employment Equity Act 55 of 1998, as amended, pp 174-195
Author/s: Van de Rheede, Jeanine
The Employment Equity Act 55 of 1998, as amended, was enacted inter alia to “achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination”. In terms of the Act, no person may discriminate against an employee unfairly, but research shows that racial discrimination of black employees persists, despite the promulgation of the Act. The objective of this article is to determine whether the Employment Equity Act 55 of 1998, as amended is the appropriate vehicle to eliminate racial discrimination of black employees. This is undertaken through the lens of critical race theory, which analyses the ways in which ignoring the importance of race perpetuates oppression. Although critical race theory was developed in the United States, it is relevant to South Africa given that black employees are still subjected to racial discrimination even many years after the end of apartheid. The tenets of critical race theory include structural determinism; the critique of liberalism; social science insights, historical analysis and multidisciplinary thinking; intersectionality; storytelling, narrative, and naming one's reality; and anti-essentialism. This article examines each tenet and shows how they relate to the Act. The contention is that the Employment Equity Act 55 of 1998, as amended is not the most appropriate vehicle for eliminating racial discrimination of black employees in South Africa.
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A critical analysis of Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB, pp 196-214
Author/s: Awarab, Marvin R
South African law under the Labour Relations Act 66 of 1995 (LRA), as amended, confers on the Labour Court the power to adjudicate on issues relating to strikes and to grant an interdict and/or order the payment of just and equitable compensation for any loss attributable to the strike or lockout. At least 48 hours before the strike, workers or their trade unions must give written notice of their intention to strike to the employer, the applicable negotiating council, and the Commission for Conciliation, Mediation, and Arbitration. If a strike follows the law, workers who take part in it are shielded from being fired for no other reason than that they are striking. Employees on strike and their trade unions are shielded from lawsuits for any losses or harm sustained while on the protected strike. During an unprotected strike, workers lose the legal protections afforded by labour laws, leaving them open to legal action and possible termination. In the case under review – Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119 – the trade union, from whom the employer sought compensation for damages caused during a protected strike, objected to the Labour Court’s jurisdiction as derived from the LRA. This article provides a critical review of the Labour Court’s jurisdiction, particularly in the light of section 68 of the LRA, to order compensation. The analysis revisits previous judgments to test the correctness of the judgment given in the Massmart case.
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The rights of women in unregistered customary marriages in Zimbabwe: Best practices from South Africa, pp 215-236
Author/s: Vengesai, Priccilar
Zimbabwe’s marriage regime is regulated by the Marriages Act No. 1 [Chapter 5:17] of 2022 (Marriage Act, 2022). According to the Marriage Act, 2022, the proprietary consequences of all marriages solemnised and registered following its provisions are regulated by the Matrimonial Causes Act [Chapter 5:13] of 1985 (Matrimonial Causes Act). Yet unregistered customary marriages are neither solemnised nor registered in terms of the Marriage Act, 2022. As such, a gap in law is created in which unregistered customary marriages fall beyond the regulation of the Matrimonial Causes Act at divorce. In other words, when it comes to divorce, unregistered customary marriages are not guaranteed the equitable distribution of matrimonial property contemplated by the Matrimonial Causes Act. This position affects the property, cultural and equality rights of women who are in unregistered customary marriages. It is thus recommended that Zimbabwe follow the example of South Africa, which has recognised the validity of unregistered customary marriages even at divorce. This in turn calls for the reform of marriage laws in Zimbabwe.
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A comparative view of the South African and Canadian framework for issuing work visas to skilled refugees and asylum seekers, pp 237-263
Author/s: Loedolf, Kim-Leigh and Hector, Megan
South Africa faces a shortage of skilled workers due to long-standing systemic challenges that prevent it from producing the skills necessary for economic development. In 2021, only 25 per cent of persons employed in South Africa were considered highly skilled. The critical skills work visa has been designed to facilitate the employment of skilled immigrants, but is unsuitable for doing so in the case of skilled asylum seekers and refugees, even though the latter could alleviate the shortage of skilled workers. While members of this group are eligible to apply for a critical skills work visa, they face significant obstacles that hinder their chances of obtaining one. This article highlights the barriers this group encounters and draws lessons from Canada’s Economic Mobility Pathways Project, which has successfully connected skilled refugees to employers and filled in-demand positions. In South Africa, the likelihood of obtaining a critical skills work visa without governmental intervention is low for many in this group, resulting in a waste of their skills. The article compares the South African case to how Canada has integrated skilled refugees to occupations requiring skills. Canada’s partnerships with NPOs such as Talent Beyond Borders have been vital in assisting skilled refugees and connecting them to employers. The article thus argues that to employ skilled refugees in positions commensurate with their skills, the South African government has to assist and form partnerships with organisations specialising in this cause.
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Neoliberalism and legal culture: The path of least resistance is what makes rivers run crooked, pp 264-287
Author/s: Mhlanga, Lindani
This article examines the relationship between neoliberalism and legal culture in South Africa, focusing on how the neoliberal paradigm influences legal interpretation and the adjudication of socio-economic rights. It explores how neoliberalism, defined as the dominance of capitalist forces over weaker oppositional interests, permeates judicial decision-making, shaping how courts address issues of inequality and social justice. The article argues that neoliberalism, in prioritizing market interests, has contributed to a conservative legal inertia that prevents transformative legal outcomes. This dynamic has entrenched existing socio-economic disparities, especially as state power continues to serve the interests of capital, reinforcing apartheid-era economic structures. Despite the transformative potential embedded in South Africa's constitutional framework, the legal system remains constrained by what Karl Klare terms as professional sensibilities, codes, and values, many of which are influenced by neoliberalism. Drawing on theoretical insights of Karl Klare, the article calls for a rethinking of legal culture and a shift towards more relational, metaphorical approaches that challenge hegemonic narratives. Only by resisting these metanarratives can meaningful transformation be achieved in the pursuit of equality and justice.
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An analysis of informal workers and the coverage of South Africa’s Covid-19 Temporary Employee/Employer Relief Scheme (TERS), pp 288-311
Author/s: Ncamane, Ntando
The Covid-19 pandemic required states worldwide to take action to contain it and, as part of this effort, adopt measures to mitigate its socio-economic impacts. In South Africa, these measures include the enactment of lockdown regulations in terms of the Disaster Management Act 53 of 2005. This article focuses on one of the measures, namely the Covid-19 Temporary Employee/Employer Relief Scheme (TERS), a system created in terms of the Unemployment Insurance Act 63 of 2001. TERS aimed to provide support to employers who were in distress at the height of the pandemic and unable to pay their employees. TERS falls under the scope of social security law because it is a measure that finds expression under the unemployment insurance system, which is an element of social insurance. This article argues, however, that temporary schemes such as TERS provide no solution to the long-standing problems of the unemployment insurance system and perpetuate its exclusionary practice of not covering informal workers. This is evident in the definitions of an employee and contributor in terms of the Unemployment Insurance Act (UIA). The two definitions lean towards offering coverage to workers in formal employment but not to informal workers. This leaves such workers destitute and vulnerable, as they have no protection; for instance, they became on furlough owing to the effects of Covid-19. This article proposes that the UIA’s definition of employees be amended to include informal workers and thereby afford them unemployment protection as well.
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Forced displacement, governance by law, and transnationalism in sub-Saharan Africa, pp 312-335
Author/s: Bamidele, Seun and Adefisoye, Taiwo Oladeji
Forced displacement is one of the most topical issues in contemporary development and humanitarian studies. Although the displacement of people across national borders and regional boundaries is not new, recent waves of forced displacement in sub-Saharan Africa have swelled numbers in displacement camps and exacerbated the abysmal conditions in these camps, attracting media and scholarly attention. This article contributes to the literature on forced displacement by examining the topic in terms of governance and transnationalism in sub-Saharan Africa. Sub-Saharan Africa is the focus of the article due to the record numbers of forced displacements in this region; specifically, cases are drawn from Nigeria. Moreover, displacement in sub-Saharan Africa involves governments and various non-state actors in multiple countries. Data for this article were sourced from the media as well as reports by various organisations, in particular in regard to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. The article concludes by pointing out the need for a more human-centric approach and for African governments to fulfil their obligations to their people in order to prevent an escalation of the problem.
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The impact of the flaws of transitional justice mechanisms in Burundi on Aspiration 4 of the African Union’s Agenda 2063, pp 336-366
Author/s: Ndimurwimo, Leah Alexis
This article examines how transitional justice mechanisms have been used to reconcile warring parties in Burundi. It draws on the findings of the Truth and Reconciliation Commission (or Commission vérité et reconciliation, commonly known as the CVR) to demonstrate the deficiencies of transitional justice in addressing Burundi’s dark history. Among the key findings of the CVR report of 2021 is the revelation that the mass killings of 1972 amount to the international crime of genocide, a characterisation which is still contentious in Burundi. This article explores the strained relations between Burundi and international donors. As the year 2024 marks the passage of 52 years since the 1972 mass killings, it is surprising that many Burundians are still waiting for justice to be served. The article critically examines the application of transitional justice mechanisms through the flaws of truth-telling, reconciliation, and reconstruction in post-conflict Burundi.
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Minority voices heard: Child participation in environmental decision-making in South Africa, pp 367-398
Author/s: Chikuruwo, Rufaro Emily and Rautenbach, Christa
In this article we explore the significance, complexities, and potential of child participation in environmental decision-making by juxtaposing Greta Thunberg’s activism and the Cape Town water crisis in South Africa. Although child participation in environmental activism, as exemplified by Thunberg, has gained global prominence, it remains underexplored in South Africa. The United Nations Convention on the Rights of the Child emphasises the right of children to participate in decisions affecting their lives, yet the practical implementation of this right varies widely. In South Africa, legal frameworks such as the Constitution of the Republic of South Africa, 1996, and the Children’s Act 38 of 2005 provide a basis for child participation but often fall short, especially in environmental decision-making. Using the example of Thunberg’s global activism, we attempt to illustrate the transformative potential of child-led activism, and argue that similar approaches could benefit children’s participation in a local context, such as during the Cape Town water crisis in 2017–2018. Thunberg’s bold actions, including filing a complaint with the United Nations, demonstrate what children can achieve through activism. In contrast, the Cape Town water crisis lacked meaningful involvement with children, thus missing out on potentially innovative solutions. We conclude with recommendations to improve children’s participation in environmental decision-making in South Africa, including through policy interventions, institutional reforms, educational initiatives, and community-based campaigns. Embracing child participation could not only bring fresh perspectives to environmental challenges, but also ensure a more inclusive, democratic and sustainable future for South Africa and beyond.
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The difference between a relocation and an eviction in the context of ESTA: A critical reflection on Boplaas Landgoed (Pty) Ltd v Jonkies (LCC 37/2022) [2022] ZALCC 38 (15 August 2022), pp 399-419
Author/s: Ngwenyama, Lerato Rudolph
In recent years, disputes around the relocation of occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA) have increased significantly. This contribution analyses the case of Boplaas Landgoed (Pty) Ltd v Jonkies (LCC 37/2022) [2022] ZALCC 38 (15 August 2022) (Jonkies), in which an owner sought the relocation of ESTA occupiers from their ESTA homes to state-sponsored ones allocated to them by the state and which they owned. The aim of this case note is to critically reflect on the case of Jonkies. The argument is made that there is a distinction between “relocation” and “eviction”, and that not only owners should be able to request relocation. It is also argued that while relocations as evictions are not permitted under ESTA, ESTA occupiers who have been offered alternative housing by the state may be evicted. A balance is, however, required in the context of ESTA so as to challenge the historical hierarchy which persists between owners and ESTA occupiers, in order to transform property relations, ensure fairness, and prevent further prejudice to ESTA occupiers.
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