An introduction to proof in South Africa

An introduction to proof in South Africa

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 139 Issue 4, p. 837-861
https://doi.org/10.47348/SALJ/v139/i4a5

Abstract

The evaluation of evidence is a process about which not much is written, nor is it regulated as much as the comparable processes of admissibility and forms of presenting evidence are in South African evidence scholarship. This article follows the example set by Paizes by arguing for the introduction of a general theory of ‘proof’, which is used interchangeably with ‘evaluation’ in the article. After briefly introducing the existing doctrine, which consists mainly of a handful of the rules and guidelines that South African courts typically use to evaluate evidence, the article offers six justifications for the introduction of a general theory of proof in South African evidence scholarship. The third part of the article gives a methodological account of what is meant by a general theory of evidential proof in South African evidence scholarship. Part IV of the article comprises a discussion of the two foundational conditions required for a South African theory of proof.

Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs

Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs

Author: Jenny Hall

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 862-886
https://doi.org/10.47348/SALJ/v139/i4a6

Abstract

The need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.

Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

Author: Leigh-Ann Kiewitz

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 887-912
https://doi.org/10.47348/SALJ/v139/i4a7

Abstract

This article shows that it could be theoretically possible to create a positive praedial trading servitude in the context of the right to trade on another’s land if certain established requirements are complied with when the doctrinal framework of South African law and s 63(1) of the Deeds Registries Act 47 of 1937 are applied. In light of s 63(1) of the Deeds Registries Act and the intention and subtraction from the dominium tests, it is conceivable that a positive trading right has the ability to burden land and to subtract from the servient owner’s entitlement of use and enjoyment of the land even in a physical sense. Therefore, such a right may be real and registrable. Furthermore, it is possible that a positive trading right could comply with the commonlaw criteria for the establishment of a praedial trading servitude. The article also examines the possible nature and content of positive personal trading servitudes. If parties do not negotiate for a positive praedial trading servitude, a personal servitude can be negotiated in favour of the beneficiary in his or personal capacity.

Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system

Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system

Author: Karin Calitz

ISSN: 1996-2177
Affiliations: Emeritus Professor and Research Associate, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 4, p. 913-945
https://doi.org/10.47348/SALJ/v139/i4a8

Abstract

Despite extensive protection for employees against sexual harassment in the workplace, South African workplaces are still riddled with this harmful conduct. The severe consequences for victims and workplaces necessitate an analysis of the development of South African law to establish its successes, but also the shortcomings that continue to exist. Although there is a matrix of laws protecting employees against sexual harassment, the Employment Equity Act 55 of 1998, which regards harassment as a form of discrimination, is still the primary statute. In this article I argue that the tendency to focus on sexual harassment as a dignity and equality issue does not take sufficient cognisance of sexual harassment as a multifaceted issue involving criminal conduct, which threatens employees’ employment security and impacts on employees’ health and safety. An analysis of case law indicates that many employers have not adopted a policy on sexual harassment, and that some employers and the Commission for Conciliation, Mediation and Arbitration commissioners do not deal with sexual harassment in a gender-sensitive way, which is an approach endorsed by the International Labour Organization’s Violence and Harassment Convention 190 of 2019. This Convention emphasises the need for an inclusive, integrated approach to combat harassment. To align the protection of victims of harassment with the Convention, South Africa adopted a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in 2022. This Code, dealing with different kinds of harassment, including sexual harassment, replaced the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. By comparing the 2005 Code and related jurisprudence to the 2022 Code, the article considers whether sexual harassment is likely to be addressed more effectively under the 2022 Code. The 2022 Code has made certain improvements to the 2005 Code, but the altered definition of sexual harassment indicates the difficulties created by adopting one code to cover both misconduct and discrimination. In addition, aspects of the Convention, such as protecting the health and safety of employees, are not dealt with effectively in the 2022 Code. A separate code should be issued in terms of the Occupational Health and Safety Act to address the psychosocial safety of employees and the compensation of victims in terms of the Compensation for Injuries and Diseases Act 130 of 1993.

Book Review: Cora Hoexter & Glenn Penfold Administrative Law in South Africa 3 ed (2021)

Book Review: Cora Hoexter & Glenn Penfold Administrative Law in South Africa 3 ed (2021)

Author: Malcolm Wallis

ISSN: 1996-2177
Affiliations: Retired Justice of the Supreme Court of Appeal; Honorary Professor of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 4, p. 946-956
https://doi.org/10.47348/SALJ/v139/i4a9

Abstract

None

Messianic hopes at the moral carnival – The [rhetorical] question of advocating for the humanities, for now

Messianic hopes at the moral carnival – The [rhetorical] question of advocating for the humanities, for now

Author Erik Doxtader

ISSN: 1996-2088
Affiliations: Professor of Rhetoric, University of South Carolina, USA
Source: Acta Juridica, 2022, p. 1 – 51
https://doi.org/10.47348/ACTA/2022/a1

Abstract

Why must the humanities be defended? What is to be said in their name? This inquiry does not seek to make a case for the humanities. It is rather concerned with what happens in contemporary advocacy that contends for the value of the humanities, the myriad arguments that take on the responsibility of speaking for the humanities and expressing the good for which the humanities are thought responsible. In all of this work, in so many efforts to argue the humanities, what remains uncomprehended, and indeed what is regularly set aside as simply incomprehensible, is the work of rhetorical-argument itself, the contingent conditions, dynamics and power of a response, the response-ability on which a comprehension of the humanities may yet depend.

On some ‘long-forgotten propositions’: Reflections on the ‘Epilogue’ to Arendt’s Eichmann in Jerusalem

On some ‘long-forgotten propositions’: Reflections on the ‘Epilogue’ to Arendt’s Eichmann in Jerusalem

Author Claudia Hilb

ISSN: 1996-2088
Affiliations: Universidad de Buenos Aires / Conicet
Source: Acta Juridica, 2022, p. 52 – 69
https://doi.org/10.47348/ACTA/2022/a2

Abstract

This contribution focuses on the last pages of the Epilogue of Eichmann in Jerusalem by Hannah Arendt, but it concerns a question that runs through Arendt’s work practically in its entirety, which can be put as follows: How can we judge when we can no longer rely on the certainties of tradition, when – with the emergence of totalitarianism – the categories and concepts with which we used to judge no longer help us to account for the horrifying reality of crimes of an unknown nature and of criminals who do not comply with the notion of criminals that we used to consider? The text aims to dwell on these somewhat strange final pages of Arendt’s chronicle of Eichmann’s trial to try to see how they nourish our reflection on how to confront an unknown evil of a new kind.

‘Qu’on ne s’étonne donc pas si un crime insondable
appelle en quelque sorte une méditation inépuisable.’
Vladimir Jankélévitch, L’imprescriptible

‘When the incomprehensible is presented as routine,
sensitivity mercifully diminishes.’
Yosal Rogat, The Eichmann Trial and the Rule of Law

An incomprehensible rhetoric

An incomprehensible rhetoric

Author Pascal Engel

ISSN: 1996-2088
Affiliations:Director of Studies, School for Advanced Studies in the Social Sciences
Source: Acta Juridica, 2022, p. 70 – 87
https://doi.org/10.47348/ACTA/2022/a3

Abstract

In his pioneering essays on the role of rhetoric in political discourse in South Africa, and in particular within the Truth and Reconciliation Commission, Philippe-Joseph Salazar has emphasised the postmodernist overtones of these debates. But he has clearly distinguished an Aristotelian line in the use of rhetoric in politics, according to which it ought to promote truth in order to convince, and a Protagorean line, according to which truth is relative and useless. Some commentators on these issues, such as Barbara Cassin, have without a blink espoused the postmodernist and Protagorean line. I take their view to be incomprehensible and incoherent. Rhetoric should not be used as a tool to bury truth, but to praise it. So, I prefer to see Salazar more as an Aristotelian than as a Protagorean.

The self-image of intelligence agents in an archive of state repression in Argentina

The self-image of intelligence agents in an archive of state repression in Argentina

Author María Alejandra Vitale

ISSN: 1996-2088
Affiliations:Professor at the University of Buenos Aires, Argentina
Source: Acta Juridica, 2022, p. 88 – 100
https://doi.org/10.47348/ACTA/2022/a4

Abstract

This article examines, from a rhetorical-discursive perspective, the self-image or ethos of intelligence agents in an archive of state repression in Argentina. The archive, which has been open to the public since 2009, once belonged to the Information Service of the North Atlantic Naval Prefecture (SIPNA). The article describes some of the problems related to opening this type of archive, such as disagreements about its current purpose and the historical actors and memory processes involved. It then describes two of the predominant self-images that characterise the intelligence agents who compiled it: that of repressors and that of political experts or analysts. The corpus is composed of documents produced on the occasion of the visit of the Inter-American Commission on Human Rights (IACHR) to Argentina in 1979. This visit was in response to international complaints about human rights violations by the military government of the time.