Transformative constitutionalism and the framework of the common law of personality

by | Mar 4, 2024 | SLR, SLR V34 I2

Transformative constitutionalism and the framework of the common law of personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 310 – 332
https://doi.org/10.47348/SLR/2023/i2a4

Abstract

This article interrogates the constitutionalisation of the framework of the common law of personality – its substance and method – against the transformative constitutionalism paradigm. The transformative constitutionalism paradigm requires greater reflexivity as to the balancing of individualistic and collectivist values in common law frameworks. Such a constitutionalisation process must be influenced by legal culture and ideology as an overarching ideological concern. The Constitutional Court in Le Roux v Dey 2011 3 SA 274 ostensibly attempted to align the framework of the common law of personality with the Constitution of the Republic, 1996 (the “Constitution”). However, the court failed to articulate the human personality as a composite legal interest consisting of various personality rights, underscored by human dignity, due to a superseding preoccupation with subjective feelings of self-worth. This reduced the composite nature of the human personality and the multifaceted nature of human dignity. The same preoccupation also prevented the separate and distinct application of the requirements of the actio iniuriarum to articulate the human personality as a composite legal interest. This article refers to the court’s judicial line of reasoning as “the iniuria approach”. This approach gives rise to an inadequate alignment between the common law and the Constitution, resulting in a substantive mismatch. Such a substantive mismatch is a “defective conversion”, of which the underlying cause is an underpinning ideology of pre-constitutional notions of (classical) liberalism) concealed through a conservative legal culture with attendant formalistic modes of legal reasoning. This causes an imbalance between individualistic and collectivist values permeating the common law’s framework in contradiction to the transformative constitutionalism paradigm. This imbalance frustrates the development of the framework of the common law of personality in line with constitutional values and necessitates the rejection of the iniuria approach in favour of a more transformative approach.

Public interest versus the interest of the fit and proper legal practitioner

by | Mar 4, 2024 | SLR, SLR V34 I2

Public interest versus the interest of the fit and proper legal practitioner

Author: Martie Bloem

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 333 – 348
https://doi.org/10.47348/SLR/2023/i2a5

Abstract

The question raised in this contribution is whether it can be said that the South African legal profession is primarily focused on serving the public or rather on serving its own interest. The assumption is that legal practice should provide an unbiased service aimed at the public good, independent of any concern for personal gain, traditionally recognised as one of the main distinguishing features of professional practice. It is further assumed that service in the interest of the public is one of the underlying values which determines legal culture and therefore also what it means to be a fit and proper legal practitioner. In an attempt to redefine “public interest” as one of the principles that should inform the fit and proper standard, the development of the professions is briefly analysed before considering the meaning of the public interest for the legal profession. This consideration is important due to the legal profession’s positioning and resultant responsibilities in society. As perceived guardians of the public interest and justice, informed by the values of the Constitution of the Republic of South Africa, 1996, the profession is ideally positioned to be the cause of change but must be reminded that it has as much potential to cause harm as it has to do good. The proposal is that genuine and honest legal service in the public interest is a value that should inform legal culture and what it means to be or to become fit and proper. However, realising this potential will entail honest introspection by legal practitioners on their role and responsibilities in the practice of law and how they contribute to the current vision of the law.

Navigating the stormy waters of providing a safe and healthy environment at the municipal level [Discussion of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020]

by | Mar 4, 2024 | SLR, SLR V34 I2

Navigating the stormy waters of providing a safe and healthy environment at the municipal level [Discussion of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020]

Authors: Onkarabile Osiele and Felix Dube

ISSN: 1996-2193
Affiliations: LLB LLM (NWU), South African Research Chair in Cities, Law and Environmental Sustainability Faculty of Law, North-West University; LLB (Univen) LLM (NWU) LLD (NWU), Postdoctoral fellow, Faculty of Law, North-West University
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 349 – 357
https://doi.org/10.47348/SLR/2023/i2a6

Abstract

The Constitution of the Republic of South Africa, 1996, obligates the state, including local government, to provide a healthy environment that is not harmful to well-being. In Featherbrooke Homeowners Association NPC v Mogale City Local Municipality GJ 25-01-2021 case no 11292/2020, the court dealt with the failure of local government to mitigate and prevent storm water flooding. This failure placed the applicant at risk of electrocution, exposure to sewage waste and damage to property. We argue in this note that whereas the court’s order reaffirmed the applicant’s environmental rights and the corresponding obligation of local government to fulfil its duty to promote and protect the right to a safe environment by mitigating and preventing storm water flooding, the court missed an opportunity to develop jurisprudence on what it recognised as an “anthropocentric” right of the applicant to a safe and healthy environment.

Digital platform workers and the conundrum of the definition of an ‘employee’ in the era of the Fourth Industrial Revolution

by | Jan 28, 2024 | SAMLJ, SAMLJ V35 I1

Digital platform workers and the conundrum of the definition of an ‘employee’ in the era of the Fourth Industrial Revolution

Author: Ntando Ncamane

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, University of the Free State
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 1 – 26
https://doi.org/10.47348/SAMLJ/v35/i1a1

Abstract

There have been many levels of digital transformation from the First, Second and Third Industrial Revolutions. The most advanced level of technology, known as the Fourth Industrial Revolution (4IR), is currently being encountered. The 4IR introduces technologies such as artificial intelligence, big data, robotics, etc. These 4IR transformational technologies also brought the emergence of the gig economy, which enjoyed enhancement by technologies of the 4IR such as big data, that improved the lives of both digital platform workers and consumers worldwide. The gig economy relies on two key role players, namely the consumer, and the digital platform worker. This is evident as there is outsourcing of work done through Internet-based platforms such as Uber Eats, Mr Delivery, Bolt and Airbnb. The Covid-19 outbreak significantly impacted the growth of the digital economy and increased the number of digital platform workers. However, digital platform workers are not protected by labour and social security laws in South Africa. This is because these workers do not qualify to be regarded as ‘employees’ within the labour law framework. For example, s 213 of the Labour Relations Act of 1995 and s 1 of the Basic Conditions of Employment Act of 1997 provide for a definition of an employee to the exclusion of independent contractors and, unfortunately, digital platform workers are categorised as independent contractors. This article notes that this exclusionary definition does not accord with the intent and purposes of s 23 of the Constitution of the Republic of South Africa, 1996. The article further notes that the limited definition of an employee exposes digital platform workers to challenges such as unfair labour practices and unconducive working conditions, which are also unsafe and unhealthy sometimes. Owing to digital platform workers not being regarded as employees, they also do not enjoy social protection and can therefore not receive social security benefits such as unemployment benefits when they lose their jobs. As it stands, digital platform workers are independent contractors. The introduction of 4IR and the Covid-19 outbreak have made the world dependent on the gig economy and therefore this article argues that this frequent use of the gig economy necessitates the extension of the definition of ‘employee’ to include digital platform workers. This will ensure a definition that encapsulates the changing times in the workplace as a result of technology.

South Africa’s NINA debtor plight: Lessons from the Scottish consumer debt relief system post the Covid-19 pandemic

by | Jan 28, 2024 | SAMLJ, SAMLJ V35 I1

South Africa’s NINA debtor plight: Lessons from the Scottish consumer debt relief system post the Covid-19 pandemic

Authors: Shammah Boterere & André Boraine

ISSN: 1996-2185
Affiliations: Postdoctoral Fellow, Faculty of Law, University of Pretoria; Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 27 – 48
https://doi.org/10.47348/SAMLJ/v35/i1a2

Abstract

In this article, the authors consider the plight of the so-called No Income No Asset (NINA) debtors against the backdrop of debt relief measures provided for this category of debtors who find themselves in a debt trap. It is a well-known fact that South African insolvency law does not provide sufficient debt relief measures for all types of debts, and those, like the NINA debtors, who are effectively excluded from the relief afforded by the sequestration and ultimately rehabilitation procedures of the Insolvency Act 24 of 1936 have no proper statutory measure to provide a discharge of debt in instances where they may desperately need it. It is submitted that the debt restructuring mechanisms provided by the administration procedure and debt review measure, are not sufficient since these do not offer a discharge. Reference is made to the newly proposed debt intervention procedure that may provide some relief in this regard, but it is argued that the legislature needs to consider further procedures to deal with their plight. With the view of making some recommendations for reform, aspects of mainly the Scottish system of debt relief measures are also considered.