Southern African Public Law

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• 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.

• Creating and Sustaining a ‘Tunnel Vision’ Argument for the Application of Customary Law—A Language Conundrum

  Legal practitioners and scholars have argued that customary law in the South African legal context has historically been underpinned by various issues which include, but are not limited to, epistemological misunderstanding, problems of ill-will in the application of this law and intentional underdevelopment. While there is contestation to a degree, the common ground among legal scholars is that the praxis of law in the country is disconnected from indigenous people’s customary beliefs, cultural practices and legal experiences. This has culminated in the training and practice of law in South Africa that lacks inclusion and or a reflection of indigenous people’s worldviews and understandings of law. Naturally, this means that it overlooks the importance of indigenous languages in the understanding and application of the law. Regrettably, the continued intentional or unintentional consumption of law founded predominately on a Euro-American worldview and cultural practices, renders South African law problematic as far as its conceptualisation and application of customary law is concerned. It is at this juncture that the present article argues that language as a cultural artefact is a critical tool in the formulation, teaching, training and praxis of law. For the South African context, indigenous languages, therefore, become a critical tool for this purpose as opposed to the prevailing use of the English language. To this end, this contribution debates African epistemological and indigenous language questions intended to demonstrate their relevance in the formulation, training and application of law in South Africa. Specifically, the article is intended to contribute to the decolonial discourse in the legal fraternity with emphasis on the importance of correct conceptualisation and application of the indigenous people’s customary beliefs, cultural practices and legal experiences.

• A Comparative Study on Human Trafficking as a Crime in South Africa

  With millions of people trapped in modern-day slavery, human trafficking is largely misunderstood, owing to limited data and research. Present-day human trafficking trends are linked to issues such as corruption, funding, public awareness, and poor anti-trafficking coordination. Over centuries, human trafficking has taken on a variety of forms ranging from enslavement in all its forms to organ removal. South Africa’s most significant achievement in combatting human trafficking is its own anti-trafficking legislation, namely the Prevention and Combatting of Trafficking in Persons Act of 2013. However, some provisions of this Act remain ineffective, thus impeding the fight against trafficking in the country. This article focuses on South Africa’s trafficking trends and anti-trafficking responses. It also highlights the hindrances obstructing the effective enforcement of its legislation by comparison to the first-world country Canada, to gain an understanding of effective anti-trafficking administration and execution to ultimately provide recommendations for South Africa to follow. For example, years before South Africa, Canada had already responded to international pressures regarding its anti-trafficking efforts. The country focused ample resources and funding on its anti-trafficking task team while South Africa followed a piecemeal approach in addressing human trafficking. This stems from a misunderstanding of the crime and policy frameworks, and mismanagement of funds. This article proposes that the South African government should strengthen its anti-trafficking measures by making funds easily accessible to victims and educating front-line responders to communicate effectively with victims.

• Towards an Afrikan Approach in Resolving the Conundrum Between a Civil and Customary Marriage

  Since the dawn of colonialism, customary marriages have been considered inferior to civil marriages. The treatment of customary law as inferior, has racial connotations, as the colonists viewed Africans as barbaric. Since the Constitution of the Republic of South Africa, 1996 took effect, the Constitutional Court pledged a commitment to afford Afrikan jurisprudence an independent identity to prevent it from being viewed as inferior to the common law. Section 10 of the Recognition of Customary Marriages is problematic because it states that a customary marriage can be overridden by a civil marriage. The courts’ argument that customary law and common law enjoy equal status is not true when one considers how courts have relied on the common law in customary law disputes. South Africa needs a decolonised option because judicial pronouncements and legislation have reaffirmed the superior state of the common law, as introduced by the colonists. Developments in the wake of the death of king Zwelithini, who was in a polygynous marriage, have implications for the debate whether a customary marriage concluded after a civil ceremony is valid, or whether a civil marriage and a customary marriage could co-exist. A solution is needed for this conundrum, because declaring customary marriages invalid is not beneficial to women married under this system.

• Unpacking the Issue of Progressive Realisation of the Basic Income Grant: A South African Perspective

  This article examines the issue of progressive realisation of the Basic Income Grant (‘BIG’) in South Africa. The article locates the BIG within the broader framework of the specific provisions of the Constitution of the Republic of South Africa (1996) that pertain to the protection of the socio-economic right to access social security, including, appropriate social assistance. The article investigates the competence, flaws, challenges and prospects of these provisions related to the protection of and access to appropriate social assistance for all. It recognises the polarity of the current social security system in general, and the inequitable social assistance model. Furthermore, this article evaluates whether South Africa is progressively realising the ideals encapsulated under the BIG.

• 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.

• A Progressive Reading of Customary and Religious Norms Associated with Heteronormativity in South Africa

  Customs that enforce heteronormativity, generally also safeguard the interests of society’s vulnerable, for instance orphans and widows, to name two examples. The recognition that non-heterosexual people is a minority group with legitimate concerns is important, as they could contribute to family support while maintaining their identity and mental well-being. Non-heterosexual individuals’ interests are protected in the current Constitution; however, their protection must transform social support structures beyond written laws. Social structures tend to accept change at a slower pace than progressive laws. In South Africa the gender-normative and heteronormative are generally being overridden by a ‘don’t ask, don’t tell’ code, where sexual minorities are gradually gaining acceptance in a dominantly heteronormative society. In this article, the authors argue against the customs of spousal inheritance and ukuthwala, which, among others, are being imposed on non-heterosexual people, because they suggest a person’s sexuality belongs to a clan. These cultural practices may serve a purpose in society but could be interpreted to support constitutional values. For instance, traditional healers as custodians of culture have documented instances of being gender-fluid, when a female could be possessed by a male spirit, thus requiring a female sexual partner. Indigenous culture as it is known, has been tainted by capitalism, patriarchy, foreign religion, and the absolute opinions of a few elders. Which begs the question whether heteronormativity truly is a South African construct.

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