Stellenbosch Law Review

Publisher:: Juta Journals
Publication date:: 2021-07-05

ISBN:: 1016-4359

Description:

The Stellenbosch Law Review is a forum for the discussion of topical legal issues in various fields. As a law review the emphasis is on providing insight rather than just an overview. It maintains a balance between a wide variety of specialist fields and legal subjects of general interest.

Issue Number

No. , March 2025

Latest documents

Not “Radical” Enough: Disrupting the Narrative of Ermelo’s Grand Transformative Potential in Public Basic Education
The Constitutional Court decision in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC) is often celebrated in education law jurisprudence. The Constitutional Court’s call for the radical transformation of public education is zealously repeated in academic discourse. In particular, the apex Court is lauded for the formulation of principles applicable to school governing bodies on how to develop constitutionally compliant language policies in terms of section 29(2) of the Constitution of the Republic of South Africa, 1996. This provision guarantees the right to education in the language of choice in public educational institutions subject to the criterion of reasonable practicability. In the subsequent decision of Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2019 12 BCLR 1479 (CC), the Constitutional Court evaluated the constitutionality of another language policy, this time in the higher education context, but adopted a markedly different approach to the interpretation of section 29(2). Using a particular conceptualisation of transformation as theoretical lens and by contrasting the judicial approaches in the two Constitutional Court judgments, this contribution advances the idea that the Court in Ermelo was myopic in its approach by failing to recognise that some school governing bodies reinforce systemic racial inequality in public schools through the adoption of language policies.
Clearing the Interpretative Air - The Need to Make Good (Air Quality) Law and to Make Good Law Work
A corollary of the environmental rule of law requirement that good laws must be passed is that these laws must also be implemented effectively. Effective implementation frequently relies on good bureaucratic decision-making which can be challenging where decisions are non-routine and complex. This challenge is evident in the practical application of so-called “listed activities”, a widely used approach in pollution and waste management regulation to trigger an obligation to obtain an environmental authorisation or licence to undertake the listed activity. When courts hear disputes on the design and implementation of these listed activities, they can play a valuable role in providing guidance on sound decision-making approaches, and course-correcting existing approaches if necessary. For the court’s impact to be realised optimally, however, it is important that judicial decisionmaking itself is based on sound reasoning and that it contains an element of predictability which follows from the employment of a consistent approach to legislative interpretation. For the interpretation of environmental legislation, this contribution proposes a reframing of the purposive interpretative approach set out in the much-cited Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) that aims to achieve what I call ‘substantive ecological purposivism’. It examines three judgments on listed activities passed in terms of the National Environmental Management: Air Quality Act 39 of 2004 through the lens of this approach and points out both inconsistencies in the three judgments as well as how the decisions in some instances could have been more closely aligned with the environmental objectives of legislation if the systematic employment of a substantively ecological purposive approach had been adopted.
The Divergent Approaches of the Constitutional Court to the right to Life and Ubuntu and the Implications for Civil Society
There are indications of an unduly deferential attitude towards the justices of the Constitutional Court when they pronounce on profound moral issues which deeply affect the moral fabric of South African society. A key to addressing this deference is to demonstrate the divergent approaches of the Constitutional Court when making such pronouncements. An awareness of these differing approaches has the potential to influence civil society to participate confidently in the process of giving the Constitutional text representative forms of meaning and, in the process, of buttressing democracy. As an illustration of the divergencies stemming from the Constitutional Court regarding fundamental moral matters, the most important of all the rights in the Constitution of the Republic of South Africa, 1996 has been chosen, namely, the right to life, more specifically pertaining to the death penalty and abortion. Accompanying this is a critical investigation into a foundational hermeneutic chosen by the Constitutional Court when giving content to the right to life, namely, ubuntu. Also, naturally emanating from this contribution is the advancement of right to life jurisprudence in South Africa
Learning from Protected Areas - Distilling Lessons for a Potential Future OECM Statutory Framework in South Africa
As 2030 rapidly approaches, governments are grappling with how, within the short remaining timeframe, to meet their commitments under the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework. The Global Biodiversity Framework’s Target 3 commits governments to incorporate at least 30% of their territory in two main forms of area-based instruments: protected areas and other effective area-based conservation measures (“OECMs”). The former are relatively well understood. The origins of the international system for protected areas dates back several decades. There exists extensive international guidance highlighting, amongst many things, the important role and influence of law on protected areas. This has in turn informed the domestic development, implementation and refinement of protected areas legislation in many countries. In stark contrast, OECMs are a far newer phenomenon. The concept was only formally defined in 2018 and no international guidance exists framing the role and influence of law on OECMs. Owing to their contemporaneity, governments are still in the process of contemplating how to provide for the domestic recognition of OECMs. Some commentators have called for deeper reflection on the role and influence of law in enabling, securing, regulating and supporting OECMs. Three potential reasons underpin these calls, namely that both constitute area-based instruments with the majority of their definitional elements being very similar in nature; if law has historically had an important role and influence on protected areas, lessons could potentially be drawn from this experience in the context of OECMs; and both count towards the same 30x30 target, with the inherent logic being that to ensure some measure of equivalence and consistency in treatment, both must be enabled, secured, regulated and supported through law. Using South Africa as a case study, the article explores lessons that could be learnt from the implementation of, and reforms to, the country’s protected areas legislation, for any future OECM statutory framework. The discussion of these potential lessons is broken down under an array of themes, namely system planning and site selection; recognition and long-term security; governance diversity; management, monitoring and reporting; and financing and incentives.
Social Justice as an Antidote to Poverty and Inequality: 30 years into Democracy, What Still Needs to be Done?
Thirty years after South Africa’s first democratic elections, the nation grapples with the paradox of being “democratic, yet unequal and impoverished”. This contribution examines the persistent socio-economic disparities that continue to plague South African society. Despite the progress made since apartheid, the deep-rooted legacies of injustice remain evident in the high levels of poverty and inequality. The concept of social justice, enshrined in the Constitution of the Republic of South Africa, 1996, is more than a moral imperative. It is a legally enforceable right that encompasses access to basic necessities like housing, healthcare, and education. However, translating constitutional promises into tangible improvements for the most vulnerable citizens remains a significant challenge. Social justice is not solely the responsibility of the Government. It is a collective mission for all South Africans to rectify past injustices and build a society based on democratic values, equality, and fundamental human rights. The role of institutions like the Public Protector of South Africa in upholding accountability and ensuring the protection of citizens’ rights is highlighted as crucial for the realisation of social justice.
Alternative Assessment in Undergraduate Legal Education in South Africa: A Positive Side Effect of the Pandemic?
The global Covid-19 pandemic resulted in a transition to online teaching and learning, which prompted higher education institutions to reconsider their assessment methods. Soon, implementing the most appropriate assessment approach to encourage students to engage with the study material on an ongoing basis and which would lead to a deeper understanding of module content became an exciting challenge in the completely remote learning scenario. Grappling with this challenge, lecturers in the Faculty of Law at the University of the Free State implemented alternative assessment methods in a Legal Skills first-year module and a Law of Property third-year module. By using the action research method to implement change, observe the change and critically reflect on the outcome, the authors report on the valuable lessons that they have learned from this exercise. This contribution provides an account of the benefits and drawbacks of traditional versus alternative assessment methods and a critical perspective on the practicality of using alternative assessment tools in undergraduate programmes.
Merging the Unmergeable: The Distortion of Competition Law Principles By Constitutional Rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]
The aspirations of the Constitution of the Republic of South Africa, 1996 are expressly recognised in competition legislation. Competition authorities and courts must, accordingly, adjudicate competition matters in a manner that gives effect to the Constitution. This has resulted in the Constitutional Court assuming jurisdiction over appeals from the Competition Appeal Court, thereby raising questions about the Constitutional Court's competence to adjudicate specialised competition matters that cannot be understood solely through the lens of constitutional interpretation. The Constitutional Court's decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the dangers that arise when the Court enters this specialised realm of the law and imposes constitutional interpretation without engaging with the principles of competition law.The case concerned a dispute about whether a merger in the healthcare sector would lead to an increase in the price of healthcare. The Constitutional Court's judgment emphasises the constitutional imperative to quell the harmful effects of the inequalities that loom over South Africa's post-apartheid economy, but it is not legally sound in all respects. This note explores the weaknesses in the judgment under the following themes: the approach to jurisdiction that contradicts jurisprudence and untenably extends the Constitutional Court's jurisdiction; the problematic assertion that precedent severely constrains the appellate powers of the Competition Appeal Court; and the Constitutional Court's inconsistent appreciation of the specialised nature of competition law and its consequent failure to engage with the evidence.This analysis concludes that this attempt to import constitutional rights into competition law, without adequately engaging with competition law itself, reveals an urgent need to re-examine the true scope of the Constitutional Court's jurisdiction and its powers to adjudicate complex and highly specialised areas of the law.
The Meaning of “Financial Assistance” in Terms of Section 45 of the Companies Act 71 of 2008
In South African law, a company that wishes to provide financial assistance to one of its directors, a related juristic person, or to a person related to a director or related juristic person, must comply with the requirements contained in section 45 of the Companies Act 71 of 2008 to validly execute such a transaction. The Act contains no precise definition of the term
Realising Socio-Economic Rights in An Unequal Society
The colonial and apartheid systems created widespread poverty and inequality which, in tandem with each other, shaped the lives of millions of our people. The Constitution of the Republic of South Africa, 1996, beyond recognising this legacy, contains a clear and unconditional commitment to fundamentally changing it. This contribution explores the achievements and challenges in redressing poverty and inequality, two key elements of the legacy of apartheid, which continues to plague South African society 30 years after the first democratic elections. It focuses on the relationship between equality and socio-economic rights, and the evolving constitutional jurisprudence on these rights. It proceeds to examine the implications of the chasm between the public and private spheres of our society in redressing the inequalities in our society, raising the question of redistributive justice. Thereafter this contribution examines the role of the courts in addressing poverty and inequality. It identifies the important role that context-sensitive adjudication can play, while also highlighting the institutional constraints of the judiciary. The contribution concludes by exploring the reasonableness model of review for adjudicating socio-economic rights claims. It identifies the features of reasonableness review that enable courts to promote government accountability for socio-economic rights realisation while respecting the separation of powers doctrine. The paper concludes that while courts have a vital role to play, addressing poverty and inequality is ultimately a joint responsibility shared by the people of this country.
A Title Deed Should Only Be Cancelled if There is Convincing Evidence That it Does Not Reflect the True State of Affairs [Discussion of Agnes v TobekA (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]
The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022) ordered the cancellation of five deeds of transfer to restore the original owners as the registered owners of the property in question. The order was based on a finding that the sale in execution of the property two decades before was invalid because the creditor did not follow the correct judicial process. Because the transfer pursuant to the sale in execution was invalid, all subsequent transfers were invalid as well, with the result that the current registered owner was not the rightful owner. This note does not question the manner in which the court applied the substantive law regarding invalid transfers of property. In light of the negative nature of the deeds registry system, it is correct for a court to order the cancellation of a title deed that does not reflect the rightful owner. Instead, the note takes issue with the manner in which the court drew conclusions from a very unclear factual matrix based on almost no documentary or other evidence. The argument is made that a title deed (such as a deed of transfer) should be regarded as prima facie correct and should only be cancelled if the person who alleges that the deed is inaccurate can supply sufficient evidence to prove that person's allegation on a balance of probabilities. The registered owner should not have to disprove mere allegations of inaccuracy or prove that all previous transfers were valid.