Southern African Public Law

Publisher:
Sabinet African Journals
Publication date:
2021-07-20
ISBN:
2219-6412

Description:

SAPL aims to provide academics and intellectuals from Southern Africa and Africa in general a forum for discursive deliberation and debate on matters relating to public law. The journal welcomes contributions dealing with topics in constitutional and administrative law, legal philosophy, legal and constitutional theory, law and government law and closely related fields. The journal encourages a multi-, inter-, and transdisciplinary approach to these various facets of public law. The journal also welcomes book reviews on topical subjects in the field of public law.

This journal continues SA Publiekreg = SA Public Law.

Issue Number

Latest documents

  • Constitutional Rights of Women in Ghana: An Expansion of the Legal Framework

    The research paper elucidates the expansion of the legal framework of women’s rights in Ghana to address all forms of discrimination against them. The article considers a three-fold reform process, including a constitutional reform to influence the enactment of an extensive parliamentary Act either domesticating the Maputo Protocol or incorporating its principles. The article acknowledges the existence of some legislation on specific forms of discrimination against women and advocates that these may support the proposed comprehensive Parliamentary Act. The third reform process considers strategic litigation as a means of implementation and compliance.

  • Land Matters and Rural Development: 2023

    The most important land-related developments in 2023 are set out. Interesting and important developments took place within the policy, legislative and case law contexts. In this regard, the urgent need for land—suitable for residential and agricultural purposes—was again underscored. Unlawful occupation of land and corresponding eviction within urban areas continued, underscoring the need for policy initiatives like the Draft White Paper for Human Settlements. In the context of rural areas, the eviction of occupiers on farmland continued. The note deals with redistribution, restitution and tenure reform developments in the land reform arena, coupled with developments relating to new courts, deeds and registries, housing generally and traditional and Khoi-San authority constructs.

  • Indigenous Knowledge and Indigenous Participation Within South Africa’s Marine Spatial Planning Regulatory Framework

    In this article the legislative environment within which South African Marine Spatial Planning legislation (MSP) was developed, will be examined. It aims to establish and support the relevance of indigenous knowledge and the role of indigenous knowledge practitioners in the marine spatial planning process from a legal point of view. It reiterates the state’s positive obligation regarding the development of environmental legislation and considers whether the state has met its obligation within the context of MSP legislation, thereby contributing to the correction of injustices of the past. It finds that South Africa’s MSP legislation falls short of the requirement of reasonableness in environmental legislation to the extent that it does not yet incorporate a requirement for the consideration of indigenous knowledge nor the participation of indigenous knowledge practitioners in MSP decision-making processes. This gap in the legislative framework is regrettable as these practitioners primarily belong to indigenous communities that were subject to marginalisation and exclusion in decision-making in the pre-democratic South African era. The author concludes by recommending amendments that may be made with regard to the MSP instruments to ensure that indigenous knowledge is considered and that indigenous knowledge practitioners participate in the MSP decision-making processes for establishing marine area plans.

  • Limiting the Use of PIE in our Constitutional Democracy: One Step Forward, Two Steps Back?

    Eviction jurisprudence has taken some interesting turns in our constitutional democracy when it comes to the applicability of PIE in various contexts. Very recently, the court in Stay at South Point Properties (Pty) Ltd v Mqulwana and Others held that PIE is not applicable to the eviction of students from student residences at higher education institutions because this type of accommodation is not considered a ‘home.’ This article reflects on whether limiting the use of PIE in this context is a step in the right direction given some pivotal judgments that have sought to ensure the eviction of vulnerable occupiers takes place in a humane and dignified manner. It is argued that bringing the rei vindicatio back in the context of eviction from residential premises should be approached with caution because it runs the risk of undoing the progress made in our constitutional democracy when it comes to proscribing arbitrary evictions. Moreover, the lack of sound justification for not recognising this type of accommodation as a home, is exactly the reason it may be necessary to maintain some court discretion in determining whether the eviction of students from student residences is just and equitable.

  • Exploring the Obligations to Complete Insurance Reforms in Lesotho

    In 2014, Lesotho reformed the insurance business sector by adopting the Insurance Act 12 of 2014 and repealing the Insurance Act 18 of 1976. These reforms resulted from the government’s recognition that the Insurance Act of 1976 was outdated and not in keeping with modern insurance principles and practices. This state of affairs made it difficult for the government to regulate and supervise insurance companies. However, in 2019, the Revenue Appeals Tribunal (Tribunal) decided an important case that revealed that the executive branch had not fully implemented these reforms through the Central Bank of Lesotho. In the Insurance Act of 2014, the Central Bank of Lesotho is defined as the Commissioner. There are gaps in the Insurance Act of 2014. This article investigates the gap in the insurance legislation identified by the Tribunal and the obligations of the Commissioner to complete the reforms. It argues that the Commissioner is compelled to fill this gap in the law for at least two reasons. First, the Commissioner has national and international legal obligations to define funeral insurance policies and fully implement the insurance reforms. Second, it is submitted that with the advent of the Pension Funds Act 5 of 2019, the need to complete the insurance reforms is even more significant because this will enable pension funds to cost-effectively procure long-term insurance products, such as funeral benefits, for the advantage of their members and their members’ beneficiaries.

  • Bridging the Gaps Between Human Rights and Climate Governance at the International and Regional Judicial Spheres

    Climate litigation underscores the critical role of judicial systems in addressing the legal complexities that emanate from global climate governance. The lead-up to and the aftermath of the Paris Agreement saw the emergence of climate litigation with claims encompassing a human rights dominance. Climate litigation serves as a critical tool that not only exposes the deficiencies within the existing international climate change regime, but also sheds light on the pressing human rights issues arising from the widespread effects of climate change. This article examines the value and effectiveness of climate litigation in enhancing the connection between climate change impacts and the protection of human rights. This article emphasises the role of the international and regional judicial bodies in orchestrating the gaps and overlaps in the human rights and climate change regimes.

  • Recognition of Marriage by Repute: Its Implications on Customary Law and Gender Justice in Malawi

    Since 1995, the Constitution of Malawi has recognised marriage by repute or cohabitation as a form of marriage in the country. However, it was only in 2015 that the Marriage, Divorce and Family Relations Act formalised such a marriage by providing a criterion for courts by which the existence of the marriage can be determined. The authors argue that this Act reflects upon society by accepting this form of marriage even in traditional society. Through discourse analysis and doctrinal research methodology, the article traces how the initial concept of a valid marriage has changed to accommodate and recognise this form of marriage. Even before the statutory law had operationalised this form of marriage, traditional leaders, as a way of determining the validity of marriages, clothed these unions with some rights ordinarily attached to married people. Customary law is not static but changes over time even in a process of cross-fertilisation with statutory law, where each is culpable of being shaped and also shaping the other. The recognition of marriage by repute has changed the marriage terrain in Malawi where eighty per cent of marriages are contracted under customary law, providing gender justice for women who were initially disadvantaged when such unions were not regarded as valid marriages by not complying with formal marriage requirements in terms of custom. Such women lost all rights afforded to a wife and the necessary benefits that she would have had in a valid marriage.

  • The Originality of Digital Evidence and the Retention of Seized Digital Devices by Law Enforcement Officers in South Africa

    Information and communication technology (ICT) devices, including mobile phones, laptops, computers and data storage mediums, such as memory sticks, are being seized daily by law enforcement agents. These devices are seized for different reasons in terms of the provisions of sections 21 to 23 of the Criminal Procedure Act 51 of 1977 and now, in terms of the provisions of sections 28 and 29 of the Cybercrimes Act 19 of 2020. The seizure and extended retention of such devices by law enforcement can have a devastating impact on businesses and individuals. In virtually all cases, the main objective of seizing an ICT device is to secure its data for purposes of investigation and the collection of evidence. This excludes, inter alia, cases where a device contains contraband and cannot be handed back to the suspect or in a case where circumstances justify forfeiture to the state. This article is limited to cases where the physical device has no evidential value. It is contended that the content of the evidential data and the requirement of originality on an ICT device is met by scientifically created forensic duplicates of the data, which negate law enforcement from unnecessary seizure and retaining the original device. The authors contend that ICT devices should only be seized in situations where a forensic duplicate of the evidential data cannot be created on the scene and, if seized, the evidential data should be forensically duplicated, and the original device returned within a pre-determined period. An extension of the pre-determined period should only be granted by a magistrate upon application. It is recommended that the subject be researched further, to arrive at a reasonable, pre-determined period, and that the Criminal Procedure Act 51 of 1977 and Cybercrimes Act 19 of 2020 be amended accordingly.

  • The Realisation of Indigent Widows’ Right to Social Security in South Africa: Pitfalls and Opportunities

    Despite the provision of the apex law of South Africa that everyone has the right to access to social security and social assistance, if they cannot provide for themselves, indigent widows are not enjoying their constitutional right. A legislative gap exists in the Social Assistance Act, as the enabling legislation makes it difficult for indigent widows to enjoy social assistance. There is scant literature on the subject of widows in general and the said few writings are on the sufferings faced by this cohort. However, there is a dearth of literature on how social assistance may be extended to cover indigent widows. Using the doctrinal research method as well as relying on the feminist approach to the human rights theory, this article examines the need to realise indigent widows’ right to social security. It further advances possible solutions that could help safeguard the social security rights of destitute widows in South Africa. Recommendations are given on how indigent widows may be included in the social security legislation.

  • Land Matters and Rural Development: 2022

    The contribution deals with the most important 2022 developments linked to land in South Africa from a legal perspective. In this regard, the overarching land reform programme\'s three sub-programmes, redistribution, tenure reform and restitution, are dealt with, reflecting on legislative developments and case law. Despite several land claims being finalised, numerous are outstanding, while the new claims have not been investigated yet. In the case of N’Wandlamharhai Communal Property Association v Westcourt, the court found that the shareholder agreements do not indicate that previous servitudes bind successors-in-title. Two cases dealt with the historical upgrading of informal land rights in urban areas, namely Gauteng Provincial Government: Department of Human Settlements v Pogatsi and Gauteng Provincial Government: Department of Human Settlements v Motasi. In the first case, the court took the passing of time into account, while in the latter case, the occupiers were evicted to give effect to the right to housing of the descendants of the original occupiers. Several cases dealt with the Extension of Security of Tenure Act 62 of 1967, such as Frannero Property Investments 202 (Pty) Ltd v Selapa, where the court clarified who has to prove what about ESTA and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). In the Constitutional Court case of Grobler v Phillips, the court focused on only one aspect of the considerations that should be considered for eviction. Developments in the pipeline, in the format of Bills, are also analysed briefly, namely the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill [B6-2022], Unlawful Entering on Premises Bill, 2022, Housing Consumer Protection Bill [B10-2021], Deeds Registries Amendment Bill [B28-2022] and the Preservation and Development of Agricultural Land Bill [B8-2021]. Housing, eviction, unlawful occupation of land, and developments linked to deeds and registries are also commented on. The Interim Protection of Informal Land Rights Act 31 of 1996 is extended. The picture concerning land reform remains bleak, although some strides have been made in redistribution, rural development, and the finalisation of restitution claims.

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