The European Union’s General Data Protection Regulation (GDPR) and its Implications for South African Data Privacy Law: An Evaluation of Selected ‘Content Principles’

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

The European Union’s General Data Protection Regulation (GDPR) and its Implications for South African Data Privacy Law: An Evaluation of Selected ‘Content Principles’

Author Anneliese Roos

ISSN: 2522-3062
Affiliations: Professor, Department of Private Law
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 72 – 108

Abstract

After a lengthy legislative process, South Africa implemented the Protection of Personal Information Act 4 of 2013 (POPI Act) on 1 July 2020. The POPI Act is an omnibus data-protection Act that conforms to the former benchmark for data-protection laws worldwide, namely, the 1995 EU Data Protection Directive. At the time of drafting the proposed Bill that would later become the Act, the South African Law Reform Commission emphasised the importance of a South African data-protection Act that complies with international standards on data protection, especially with the EU’s Directive. The Directive, in Article 25, imposed a prohibition on the transfer of personal data to non-member countries that do not ensure an adequate level of protection when personal data of their citizens are processed. South Africa’s Act needed to comply with the standard set in the Directive for the protection of personal information if South Africa wanted to remain part of the international information technology market. In 2016, the EU adopted the General Data Protection Regulation (GDPR) that replaced the 1995 Directive with effect from May 2018. The question now arises whether the South African Act still meets the minimum standards for data protection set out by this Regulation and whether amendments to the Act are needed. This article compares certain provisions of the GDPR with similar provisions of the POPI Act in order to establish whether the South African Act meets the standard set in the GDPR.

Monitoring the Realisation of the Right to Basic Education: The South African Jurisprudence and Structural-Process-Outcome Indicators

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Monitoring the Realisation of the Right to Basic Education: The South African Jurisprudence and Structural-Process-Outcome Indicators

Author Serges Kamga

ISSN: 2522-3062
Affiliations: University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 109 – 144

Abstract

Under international law, the right to education should be available, accessible, acceptable, and adaptable—or comply with the four As. This right is provided for by the South African Constitution and numerous policies. Yet it remains illusory for thousands of South Africans. Against this backdrop, this article seeks to clarify indicators to monitor the implementation of this right. To this end, unpacking the South African jurisprudence on the right to basic education, it relies on the structural-process-outcome indicators model to unveil what needs to be done to secure a tangible enjoyment of the right to basic education. Based on this approach, it finds that the right to basic education is multidimensional and that its constitutive elements include immediate and non-discriminatory access to school buildings; infrastructure; the right to teachers and non-educational staff; the right to enjoy religion, language, and culture; as well as free transport for learners living far from the school. Ultimately, in light of the South African jurisprudence, the structural-process-outcome indicators explain what is effectively expected to operationalise the four As. Lessons gleaned from this approach will enable all stakeholders in South Africa and other parts of Africa to advance the right to basic education.

Journal Note: The Canadian Courts’ Approach to the ‘Duty to Consult’ Indigenous Peoples: A Comparative Overview

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Journal Note: The Canadian Courts’ Approach to the ‘Duty to Consult’ Indigenous Peoples: A Comparative Overview

Author George Barrie

ISSN: 2522-3062
Affiliations: Emeritus Professor, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 145 – 168

Abstract

Articles 18, 19 and 23 of the United Nations Declaration on the Rights of Indigenous Peoples 2008 and Articles 6 and 15 of the ILO Convention Concerning Indigenous and Tribal People No 169 of 1989, generated a concept of the ‘duty to consult’ indigenous peoples in matters that adversely affect their interests. The question as to whether this ‘duty to consult’ had not developed into a rule of customary international law, was raised at the International Law Association’s meeting in Sofia in 2012. To answer this question a survey of state practice needs to be undertaken. This article focusses on the state practice of Canada regarding the ‘duty to consult’ as illustrated by decisions of that country’s courts. It can be implied that Canadian courts see the ‘duty to consult’ as an obligation which must be adhered to. Canadian courts have recognised the ‘duty to consult’ since the judgment in R v Sparrow in 1990, but the elaboration of the concept came strongly to the fore in a trilogy of cases in 2004 and 2005 in the Haida Nation, Taku River Tlingit First Nation and Mikisew Cree First Nation cases. Since then, the concept has been incisively discussed and applied in the Canadian Supreme Court in the Rio Tinto, Little Salmon, Moses and the Behn/Moulton Contracting cases from 2010 to 2013. The above developments are encapsulated in the 2017 Ontario Superior Court case of Saugeen First Nation. The example of Canadian courts accepting ‘the duty to consult’ its indigenous peoples has manifested itself in other jurisdictions, particularly in Australia and recently in South Africa; and indicates an evolving international customary law norm.

Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

Author Lea Mwambene

ISSN: 2522-3062
Affiliations: University of the Western Cape, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 169 – 193

Abstract

‘Marriage by capture’ among the Hmong people in the United States of America and ukuthwala in South Africa both take the form of the mock abduction of a young woman for the purpose of a customary marriage. The noteworthy point about these two customary marriage practices is that, although Hmong marriage by capture takes place in the context of a minority community in a liberal state, and ukuthwala occurs in a postcolonial state, courts in these jurisdictions convert these marriage practices to the common law offences of rape, assault, and abduction. This article reflects on the accused-centred approach in the case of People v Moua, in which the court invoked the cultural defence, and the victim-centred approach in Jezile v S, which severed cultural values from the rights of the woman. It questions whether the two communities in question, in their respective liberal and postcolonial settings, influence the attitudes of the courts in cases involving rape, assault, and abduction charges. The main argument proffered is that both approaches may encourage communities to continue marriage abduction practices without bringing them to the attention of investigative organs, with adverse human rights implications for the women and girls affected. The ultimate purpose of this conversation, therefore, is to show how the approaches of the courts to the recognition or non-recognition of these customary practices affect the rights of girls and women who encounter institutions of law that alienate people belonging to minority cultural groups, and often perpetuate injustice.

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

Author Atilla Kisla

ISSN: 2522-3062
Affiliations: PhD Candidate, Department of Public Law, University of Cape Town
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 3 – 39

Abstract

Amnesty laws issued by Administrator General Pienaar in 1989 and 1990 still show their effect by preventing prosecutions and investigations of situations that occurred before Namibia’s independence. Unlike South Africa, Namibia did not establish a truth-finding body such as the Truth and Reconciliation Commission. The result is a situation of silence, oblivion and impunity without any kind of accountability. On this basis, crimes such as international crimes or serious human rights violations have never been prosecuted or even investigated. As this article argues, the amnesty laws from 1989 and 1990 qualify as blanket amnesties. Up until today, Namibians as well as the members of the South African Defence Force benefit from those amnesties. Against this backdrop, the question of whether the Namibian blanket amnesties apply in relation to international crimes and grave human rights violations will be addressed. This article argues that based on international law, the application of the Namibian blanket amnesties can be challenged in a potential criminal case that deals with international crimes or grave human rights violations in the Namibian courts. Therefore, this article illustrates how international law applies in the Namibian legal system. In this context, Namibia follows a monist approach which makes it quite receptive of international law and international standards. On this basis, this article points out binding international law at the time before and after Namibia’s independence as well as examining Namibia’s binding treaty obligations which arise under the Geneva Conventions, Torture Convention and the International Covenant on Civil and Political Rights. In the next section, an examination of domestic and international jurisprudence lays the foundation for the argument that the Namibian blanket amnesties can be challenged in a Namibian court when the crimes in question constitute international crimes, such as crimes against humanity or war crimes.

Legally Pluralist and Rights-based Approaches to South African and English Muslim Personal Law—A Comparative Analysis

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Legally Pluralist and Rights-based Approaches to South African and English Muslim Personal Law—A Comparative Analysis

Author Brigitte Clark

ISSN: 2522-3062
Affiliations: Senior Lecturer, University of KwaZulu Natal and Honorary Senior Research Fellow, Oxford Brookes University
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 40 – 82

Abstract

This article examines the right to the free exercise of religion from a comparative perspective in the context of Islamic marriage and divorce in England and South Africa. In particular, the article considers how Islamic marriage may be interpreted and recognised in a coherent manner in rights-based systems of law and how these two legal systems ensure that the rights of religious women are fully respected and acknowledged. The similarity in the growth of non-legal, quasi-judicial bodies (sharia councils in England and ulama in South Africa) is analysed, along with their effect on rulings on Islamic divorces and other matters. The article suggests that both legal systems may learn from the other and suggests ways in which this comparative method of legal analysis can be employed to achieve legal reform and the legal recognition of these marriages. In this regard, the article deals with various models, based on either the assimilation and unification of marriage laws (as proposed in South Africa) or integration and pluralism. The article examines these models not only from a pragmatic perspective, but also from a rights perspective. It suggests that the assimilation model, based on a Western, Judeo-Christian paradigm of marriage, would not only be inconsistent with the ethos of legal pluralism promoted by the South African Constitution and the English Human Rights Act, but, more importantly, would not protect the rights of Muslim women adequately. Therefore, the article concludes that, in line with recent South African High Court jurisprudence, the legislative recognition of Muslim marriage and divorce law is urgently required in both jurisdictions.

Disparaging Language (ex curia) as a Barrier in Individual Complaints before the European Court of Human Rights (Zhdanov v Russia)—Lessons for the African System?

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Disparaging Language (ex curia) as a Barrier in Individual Complaints before the European Court of Human Rights (Zhdanov v Russia)—Lessons for the African System?

Author Angelo Dube

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Public, Constitutional and International Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 83 – 100

Abstract

On 16 July 2019, the European Court of Human Rights (ECtHR) rejected an application by Russian human rights activist, Nikolay Alekseyev, on the basis that he had published personally offensive and threatening material online, directed towards the ECtHR. This was in the matter of Zhdanov and Others v Russia Applications Nos 12200/08, 35949/11 and 58282/12. Even though the published material fell afoul of the European Convention in that it amounted to an abuse of the court process, nothing offensive was contained in the applicant’s own submissions before the court. In like fashion to the ECtHR’s admissibility requirements, the African Charter contains a much more pointed exclusionary clause which renders inadmissible any communication that contains disparaging or insulting language. The difference between the two systems is that the European system relies on an open-ended concept of ‘abuse of the right of individual petition’, whilst the African system specifically proscribes insulting language. In this article, I analyse the approach of the ECtHR in the Zhdanov matter, and contrast it with the approach of the African Commission on Human and Peoples’ Rights (the African Commission) under Article 56(3) of the African Charter on Human and Peoples’ Rights. I further interrogate whether there were any instances where, in similar fashion to the Zhdanov matter, the African Commission declared a communication inadmissible on account of insulting language occurring externally, and not contained within the submission itself. Alive to the fact that the concept of ‘abuse’ in the European system is wide, the article is limited to cases in which the abuse of the right of individual petition under the European Convention manifests in disparaging or insulting language.

A Gain-based Remedy for Breach of Contract in English Law: Some Lessons for South African Law

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

A Gain-based Remedy for Breach of Contract in English Law: Some Lessons for South African Law

Author KA Seanego

ISSN: 2522-3062
Affiliations: Senior Lecturer, Department of Private Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 101 – 129

Abstract

A gain-based remedy for breach of contract is aimed at taking away the profits acquired through breach of contract. Traditionally, contractual damages can be claimed only if the breach caused the plaintiff patrimonial loss. There is an assumption that breach of contract causes a loss to the plaintiff, and as a result the defendant should compensate the plaintiff. However, in the past, courts have been confronted with cases where the opposite of this assumption is true. This is in instances where a defendant breaches a contract and gains profit as a result of that breach, whereas the plaintiff suffers little or no patrimonial loss. Unfortunately, in these circumstances the plaintiff may be left with no remedy or legal recourse for the breach, while the defendant may keep the profits generated as a result of the breach. However, in English law the courts have recognised a gain-based remedy in the circumstances outlined above, allowing the disgorgement of such ill-gotten profits. But a similar remedy has not yet gained recognition in the South African law of contract. The purpose of this article is to explore how South African law can draw some valuable lessons from English law in developing and recognising a gain-based remedy for breach of contract in order to deal with the profits generated through breach of contract.

The Indian Approach to Criminal Justice: The Role of Traditional Courts as Alternative Dispute Resolution Mechanisms

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

The Indian Approach to Criminal Justice: The Role of Traditional Courts as Alternative Dispute Resolution Mechanisms

Authors Navilla Somaru & Christa Rautenbach

ISSN: 2522-3062
Affiliations: Chief Prosecutor at the National Prosecuting Authority of South Africa; Professor of Law, North-West University (Potchefstroom Campus)
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 130 – 169

Abstract

South Africa and India both struggle with a high crime rate and case backlogs in the mainstream courts. Both countries have a pluralistic system where state law consists of formal law and customary law. Both have mainstream and traditional courts following dispute resolution based on traditional values and principles. The panchayat system in India is comparable to traditional authorities in South Africa. The panchayat system performs judicial-like functions, and traditional courts operate at informal (nyaya panchayat) and formal (gram nyayalayas) levels in the rural areas. The lok adalat system is an alternative dispute resolution mechanism employed by the Indian government to address the high crime rate and court backlogs. Statistics reveal that these alternative justice mechanisms based on traditional values and principles have successfully cleared some backlogs. South Africa is in the process of adopting legislation on traditional courts, and it is envisaged that the Traditional Courts Bill [B1-2017] will soon be transformed into law. In reconsidering traditional courts’ role in the South African criminal justice system, it is worthwhile to explore what the Indian government has been doing in this regard. The main aim is to analyse the Indian approach to criminal justice regarding dispute resolution examples based on traditional laws, namely the panchayat system (nyaya panchayats and gram nyayalayas) and also lok adalats in a comparative context.

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

Author Chiedza Simbo

ISSN: 2522-3062
Affiliations: Senior Lecturer, University of Venda
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 170 – 204

Abstract

Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.