Books and Journals

Sources in this library

Category

Publisher

Latest documents

  • Off-Premises Cannabis Consumption and the Workplace: Striking a Balance Between Zero-Tolerance Policies and Employee Rights. An Analysis of Enever v Barloworld

    South African labour law recognises both employers' rights to discipline and employees' rights to fair labour practices. While the Labour Relations Act ('LRA'), the Constitution and the Employment Equity Act prohibit unfair discrimination and guarantee fair dismissals, employers may implement workplace safety rules, including zero-tolerance drug policies. Following Prince v Minister of Justice (2018), which decriminalised private cannabis use, disputes have arisen over employees' dismissal for positive tests. In Enever v Barloworld (2024), a category analyst was dismissed under her employer's zero-tolerance policy after repeatedly testing positive for cannabis used privately for health and religious reasons. The Labour Court upheld the dismissal, emphasising workplace safety. However, the Labour Appeal Court overturned it, finding the dismissal to be automatically unfair and discriminatory under s 187(1)(f) of the LRA, as it impaired the employee's dignity and failed to distinguish between workplace safety risks and private use. This article argues that employers must reassess zero-tolerance cannabis policies to account for job requirements, fairness and constitutional rights, to balance workplace discipline with employee rights in an appropriate way.

  • An Analysis of Theoretical Perspectives on Executive Remuneration vis-à-vis Transformative Constitutionalism in South Africa

    This article critically examines dominant theoretical perspectives on executive remuneration in the context of South Africa's constitutional commitment to substantive equality, human dignity and social justice. Certain theories on executive remuneration are analysed to assess their explanatory power and normative adequacy in light of the country’s deeply entrenched socio-economic inequality. The article argues that while these theories have shaped remuneration practices in the corporate sector, they largely reinforce, rather than challenge, excessive pay disparities and fail to align with the transformative goals enshrined in the Constitution of the Republic of South Africa, 1996. Drawing on the concept of transformative constitutionalism, the article highlights the obligation of private actors, including companies, to respect and advance constitutional values. In response to the limitations of existing remuneration theories, the article proposes the Inclusive Redress Theory ('IRT'), a normative framework grounded in principles of substantive equality and social redress. The IRT advocates for mechanisms such as maximum pay ratios and redress-linked incentive structures to ensure fairness and accountability in executive remuneration. The article concludes that adopting such a framework could help to focus corporate practices on the constitutional imperative of social transformation in post-apartheid South Africa.

  • Aspects of Cancellation Clauses for Breach of Contract: The Impact of Consumer Legislation, and Whether Cancellation Clauses Should Apply to Partial Repudiation or Very Minor Breaches

    Consumer legislation impacts upon suppliers' freedom to draft cancellation clauses. The view that it is not necessary in the case of repudiation to follow a procedure for cancellation prescribed in an agreed cancellation clause should apply where the breaching party repudiated the entire agreement or all outstanding obligations. By contrast, it should not generally apply where the breaching party repudiated only a part of the agreement, because the argument that the breaching party repudiated the whole of the agreement, including the cancellation clause, does not apply to partial repudiation. An exception would be where the breaching party persists in the partial repudiation despite repeated demands to retract the repudiation. A cancellation clause that allows the aggrieved party to cancel the contract immediately, without requiring the breaching party to issue an ultimatum, should not apply to an insignificant breach. Whether a breach is insignificant should depend on whether it is non-culpable and has little impact on the aggrieved party. If this rule is not regarded as acceptable for contracts generally, it should at least apply in the case of lease, as the tenant's possessory rights are affected, with serious consequences for the tenant. There is support for these rules in foreign law.

  • Corporate Governance and Artificial Intelligence: The Emerging Legal Challenges in South Africa’s Boardrooms

    This article examines the emerging legal and governance challenges arising from the integration of artificial intelligence ('AI') into South African boardrooms. As AI technologies increasingly influence corporate decision-making, they raise complex questions about directors' fiduciary duties, accountability, and the adequacy of existing legal frameworks. Drawing on the Companies Act 71 of 2008 and the King V Code, this article examines how the adoption of AI intersects with directors’ duties of care and diligence, particularly as reliance on algorithmic tools becomes more prevalent. It critically assesses recent literature that distinguishes between assisted, augmented and autonomous AI, using this framework to analyse varying levels of AI integration and their implications for governance. The article identifies significant regulatory gaps in current soft-law approaches and argues that the King V provisions, while representing meaningful progress, require further refinement to address boardroom-specific risks and accountability concerns. To that end, the article proposes a hybrid regulatory model that combines enhanced principles-based guidance with targeted amendments to company law. This approach aims to balance innovation with legal certainty, ensuring that South Africa’s corporate governance standards evolve in tandem with AI capabilities while preserving the ethical leadership and human accountability central to sound governance.

  • The Shareholders' Agreement and the Memorandum of Incorporation: Inconsistencies, Efficiencies and the Missing Nuance in Section 15(7) of the Companies Act

    Section 15(7) of the Companies Act 71 of 2008 radically altered the way in which the constitutional documents of a company — the memorandum of incorporation (‘MOI’) and the shareholders’ agreement — interact. Section 15(7) provides inter alia that any provision in the shareholders’ agreement that is inconsistent with a company's MOI is void to the extent of the inconsistency. This article examines the interplay between the shareholders’ agreement and the MOI and offers recommendations for resolving any conflicts between the two. This article critically evaluates how the courts have interpreted s 15(7). The analysis reveals that our courts do not always interpret s 15(7) consistently or correctly. Where s 15(7) is applied correctly, it can lead to efficiencies in corporate governance, reaffirming the majority-rule doctrine that our corporate law embraces. Even when s 15(7) is not applied correctly, it can lead to absurd outcomes in which the provisions of a shareholders’ agreement are ignored despite all the shareholders consenting to them. Section 15(7) should ideally recognise unanimous shareholders’ agreements over the MOI in certain contexts. Given that legislative reform is not always realistic, I make practical recommendations to legal practitioners about navigating s 15(7).

  • Navigating Intestate Inheritance Rights: The Case for Platonic Partners in South Africa's Intestate Succession Act

    South Africa's Intestate Succession Act 81 of 1987 privileges the nuclear family and, in particular, marriage and marriage-like relationships in intestate inheritance. This article examines the exclusion of platonic relationships from intestate inheritance, situating the problem within South Africa's evolving family structures and jurisprudence. The article discusses how legal reform (through jurisprudence and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009) has kept intestate inheritance tethered to a narrow marriage-centric model. It draws on comparative law to demonstrate both the possibilities and limitations of extending benefits usually reserved for marriage to other relationships. The article argues for an amendment to the Intestate Succession Act that would empower the Master of the High Court to consider the totality of the circumstances and relationships of dependency in making an order for the devolution of an intestate estate. This discretionary remedy may provide relief to vulnerable dependants pending broader legislative reform. By decentring marriage in intestate inheritance, the article contributes to the broader project of aligning family law with social reality and fostering inclusive protections for diverse South African households.

  • Prelims

    —

  • The Normative Dilemma(s) in the African Human Rights System and its Effects on the Development of Human Rights Jurisprudence: A Focus on the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child

    The butterfly effect illustrates how a small oversight, if left unchecked, can have significant consequences over time. A pertinent example of this principle is found in the Protocol establishing the African Court of Human and Peoples’ Rights, which notably does not grant the African Committee of Experts on the Rights and Welfare of the Child direct access to this court. This omission is particularly striking when compared to the limited access afforded to the African Commission on Human and Peoples’ Rights. To address this impasse, the Committee sought an advisory opinion from the African Court regarding its access. This contribution critically analyses the Court’s advisory opinion in relation to the submissions made by the Committee. The analysis is reflective and proffers some insights worthy of future consideration. It attempts to analyse some of the premises used by the Court to arrive at the final decision in its advisory opinion. The reasons provided, while mostly procedural, cannot shy away from some of the substantive child rights principles that informed, and should have informed the advisory opinion. The sources used for this reflection include submissions by the African Committee, the advisory opinion, the procedural rules of the African Court, the experiences of other regional courts and the jurisprudence of the Court.

  • A Reflection on the Intersection between the Role of State and Non-State Actors in Providing Alternative Care for Children in Tanzania

    The interplay between the role of state and non-state actors in providing alternative care services for children in Tanzania is a phenomenon requiring closer examination. The legal and institutional framework regulating alternative care services vests the care and discharge of services for children deprived of their family environment primarily in the state. The law, however, acknowledges that the state cannot fully and effectively discharge this duty without the support and cooperation of non-state actors and the community. Thus, the state can enter into agreements with various non-state actors (NSAs) to provide selected alternative care services. It is apparent that alternative care services for children in Tanzania are predominantly led by non-state actors, who appear to have adequate resources to facilitate the provision of various services. The main argument of this contribution is that imbalanced power relations between state and non-state actors affect the creation of a clear national vision towards quality alternative care services for children and jeopardise the realisation of the right to alternative care.

  • The Proposed Prohibition on Child Marriage in South Africa: Exploring the Implications and Imagining a Retroactive Legal Position for the Married Child

    South Africa (SA) still legally permits child marriages. A consistent call has been made by the Committee on the Rights of the Child (CRC) as well as the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to SA to abandon this practice. Recent legislative developments indicate that SA might heed such a call. The draft Marriage Bill of 2023 restricts the marriageable age to anyone 18 years or older. Should this law become operational, it will effectively prevent anyone from entering into marriage as a child. Although this law reform would be a victory against child marriage, it will come with one notable limitation – prospective legal application. In recent discussions between the CRC and the South African delegation on the latest country report, a committee expert asked a pertinent question: ‘What was being done to help children already married?’ The position and vulnerability of the South African child in relation to private law, public law and international law sources emphasise the significance and importance of the prospective prohibition on child marriage in South Africa, but fail to account for children already married. In imagining a legal position where South Africa has already banned child marriage, what must be questioned is whether the prohibition will impact the rights and status of the already-married child and whether a retroactive operation should be included when enacting the change to the legislative framework. Potential retroactivity would have a drastic impact on the complex nature of rights, duties and entitlements of children in existing child marriages. Our research intends to examine whether the potential negative impacts of retroactivity when ending child marriage can and should be justified in the best interest of married children.

Add as a preferred source on Google