The crisis of criminal justice in South Africa

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020

The crisis of criminal justice in South Africa

Author E Cameron

ISSN: 1996-2177
Affiliations: Retired Justice of the Constitutional Court of South Africa
Source: South African Law Journal, Volume 137 Issue 1, p. 32-71

Abstract

This article investigates the crisis of criminal justice in South Africa. The article demonstrates through statistical analysis how South Africa’s prisons are not places of rehabilitation but overcrowded penal institutions. The reasons for this are investigated, these lying primarily in South Africa’s broken history, in the inefficiencies of coherent decision-making in our political leadership, our dismaying lack of institutional competence and the chimera that minimum sentencing legislation can somehow solve the problem, diverting us from finding more efficient solutions. A variety of potential solutions are then proposed with a view to ameliorating the crisis, inter alia from abolishing minimum sentences, to a revision of bail laws and practices, to the identification and adoption of numerous other restorative justice approaches and approaches previously recommended (but not implemented) by the South African Law Reform Commission.

Sexual abuse of pupils by teachers in South African schools: The vicarious liability of education authorities

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020, Uncategorized

Sexual abuse of pupils by teachers in South African schools: The vicarious liability of education authorities

Author K Calitz & C de Villiers

ISSN: 1996-2177
Affiliations: Emeritus Professor, Faculty of Law, Stellenbosch University; Part-time Lecturer, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 1, p. 72-107

Abstract

The high incidence of sexual abuse of pupils by teachers in South African schoolshas a profound effect on the constitutional rights of children, especially the right to a basic education. There is a comprehensive legal framework in terms of which steps could be taken against perpetrators. Despite this, and as a result of the intricacy and inconsistent implementation of existing measures, perpetrators are not appropriately disciplined. This exacerbates the infringement of the constitutional rights of victims. The failure to take action against perpetrators exposes education authorities to delictual claims for harm suffered by victims. Instituting claims based on vicarious liability against education authorities would serve the goals of deterrence and of victim compensation. To determine whether a claim based on vicarious liability could succeed in South Africa, we compare the development of vicarious liability in certain common law countries in the context of institutional sexual abuse of children. The conclusion is that such a claim could be successful if the constitutional duties of teachers, the constitutional rights of pupils, and elements of power, control, trust, and intimacy in the relationship between teacher and pupil point to a close connection between the teacher’s employment and the unlawful act. We conclude that, where a coherent strategy is adopted, sexual abuse could be prevented if education authorities were to focus on the implementation of preventative measures. We make recommendations which could assist in developing a coherent prevention strategy and simultaneously reduce the possibility of claims for vicarious liability against the department.

The importance of a legislative framework for co-operation and collaboration in the Twin Peaks model of financial regulation

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020

The importance of a legislative framework for co-operation and collaboration in the Twin Peaks model of financial regulation

Author G van Niekerk & C van Heerden

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 137 Issue 1, p. 108-144

Abstract

The enactment of the Financial Sector Regulation Act 9 of 2017 (‘the FSR Act’) on 21 August 2017 marks the first stage of South Africa’s transition from a sectoral to a Twin Peaks model of financial regulation. On 1 April 2018 — the commencement date of the FSR Act — two regulators, the Prudential Authority and the Financial Sector Conduct Authority, were established. This article considers the mechanisms introduced by the FSR Act to facilitate co-operation and collaboration between the South African Reserve Bank (‘SARB’) and the financial sector regulators, and other organs of state as well, by comparing these measures to those available in Australia. The co-operation and collaboration in South Africa are discussed on two levels namely, first, the focused co-operation and collaboration enabling the SARB to fulfil its financial stability mandate and, secondly, the broader co-operation and collaboration for the effective operation of the Twin Peaks model. This is compared to the co-operation and collaboration in Australia between the Reserve Bank of Australia and the other two regulatory agencies, APRA and ASIC. It appears that immutable aspects of co-operation and co-ordination should preferably be captured in legislation, especially aspects such as conflict resolution and lines of co-operation and collaboration in crisis times.

Empowering rural women crafters in KwaZulu-Natal: The dynamics of intellectual property, traditional cultural expressions, innovation and social entrepreneurship

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020

Empowering rural women crafters in KwaZulu-Natal: The dynamics of intellectual property, traditional cultural expressions, innovation and
social entrepreneurship

Author D O Oriakhogba

ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, University of Cape Town;
Lecturer, University of Benin, Nigeria
Source: South African Law Journal, Volume 137 Issue 1, p. 145-172

Abstract

This article, based on qualitative and desk research, explores the intellectual property, traditional cultural expression, empowerment, innovation, and entrepreneurship dynamics at play in the work of a group of women crafters (bead-makers) participating in the Woza Moya project of the Hillcrest AIDS Centre Trust in KwaZulu-Natal, South Africa. The study found that, in this particular case, collaborative and inclusive innovation practices and social entrepreneurship modalities appear to generate significant empowerment for the craftspeople, regardless of the fact that the intellectual property system does not offer easily accessible opportunities. Inclusive innovation and social entrepreneurship would thus, in this case, appear to be some effective mechanisms for empowering rural women crafters.

Bricks in the wall or the spice of ‘good life’? Independent schools in South African law

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Bricks in the wall or the spice of ‘good life’? Independent schools in South African law

Author D M Pretorius

ISSN: 1996-2177
Affiliations: Attorney and Partner, Bowmans
Source: South African Law Journal, Volume 136 Issue 4, p. 605-649

Abstract

South African education laws have historically distinguished between public schools (also known as ‘state schools’ or ‘government schools’) and private schools. The Constitution of the Republic of South Africa, 1996, maintains this distinction by providing for a right to establish and maintain ‘independent’ schools, provided they (a) do not discriminate on the basis of race, (b) are registered with the state, and (c) maintain standards not inferior to those of comparable public schools. Case law since the mid-1990s has begun to establish a body of jurisprudence on the position of independent schools in the South African education and legal systems. Although still in its infancy, this body of case law indicates that the law applicable to independent schools is different in material respects from that applicable to public schools. Independent schools are subject to a lower degree of state regulation than public schools are, and have a degree of freedom to implement educational philosophies designed to promote particular linguistic, cultural and religious objectives. However, the exact nature of the relationship between the state and independent schools, and the extent to which the state has power to regulate independent schools, remains to be settled.

The challenging relationship between contemporary art and copyright

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

The challenging relationship between contemporary art and copyright

Authors Matthew Sawyer & Sadulla Karjiker

ISSN: 1996-2177
Affiliations: LLM student, Stellenbosch University; Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 136 Issue 4, p. 650-675

Abstract

This article seeks to address the current wording of the definition of ‘artistic work’ in the Copyright Act 98 of 1978. It is argued that such wording has failed to aid courts in interpreting it in a way that allows for a broadening of its scope so as to include new art forms — most importantly, for this article, multimedia installations. Analysis of the Copyright Act’s definition of ‘artistic work’ is applied to four contemporary and prominent multimedia installation artworks to determine whether such creations would fall within this definition. The outcome of this analysis shows that, although certain multimedia installation creations are provided protection under the current definition, there are artworks that do not satisfy the requirements under this definition. It is thus proposed in this article that certain amendments should be made to the Copyright Act that will afford such excluded artistic works copyright protection. Finally, this article conducts an analysis of the possible adverse effects that could arise should such amendments be effected to the wording of the Copyright Act in terms of the requirements of materiality and originality. Through the application of these two requirements to further examples of multimedia installation artworks, the conclusion is reached that these requirements would not render the proposed amendments superfluous or problematic.

Fischer v Unlawful Occupiers & others (WCC): Difficulties in seeking damages for a failure by the police to prevent unlawful occupation

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Fischer v Unlawful Occupiers & others (WCC): Difficulties in seeking damages for a failure by the police to prevent unlawful occupation

Author Sarah Fick

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue 4, p. 676-716

Abstract

The decision in Fischer v Unlawful Occupiers & others 2018 (2) SA 228 (WCC) has been labelled a ‘landmark judgment’ in the context of evictions, because it highlighted several issues that are prevalent in eviction matters. This article focuses on one of these issues — the difficulties faced by landowners who want to claim damages from the state for the police’s failure to protect their properties against unlawful occupation. In Fischer, one landowner’s claim against the Minister of Police for the failure by the police to protect the properties against unlawful occupation was dismissed, without any explanation of the law relating to how the Minister of Police might be accountable in such situations. This article explores in detail the potential difficulties faced by landowners when trying to hold the state accountable for the police’s failure to prevent unlawful occupation. More specifically, it first examines the question whether the police have a legal duty to protect private property in eviction cases. Thereafter, the article considers the requirements and potential difficulties with three potential causes of action: claims for damages arising out of administrative law, the general principles of delict, and a direct claim for constitutional damages.

The question of rights, acceptance and amendments of inter vivos trusts in terms of the stipulatio alteri

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

The question of rights, acceptance and amendments of inter vivos trusts in terms of the stipulatio alteri

Author Rika van Zyl

ISSN: 1996-2177
Affiliations: Senior Lecturer, Private Law, University of the Free State
Source: South African Law Journal, Volume 136 Issue 4, p. 717-748

Abstract

The stipulatio alteri, which is regarded as the mode through which an inter vivos trust is created, is still being scrutinised and continues to be shrouded in uncertainty. Some of these uncertainties have been created by courts, which have held that acceptance enables the third party to step in as a contracting party to the trust. This article shows how case law has developed based on this faulty premise, and explains the impact the premise has had on the involvement that is needed from beneficiaries to effect amendments to a trust deed. It is argued that the true interpretation of the stipulatio alteri, in line with common law, focuses on the question of the rights that were intended for beneficiaries. The various intended rights may enjoy different forms of protection against amendment of the trust deed. When the issue of amendment comes up, consideration must be given to the position of the beneficiary, not by deeming him or her to be a contracting party, but by evaluating the rights the founder intended to confer on him or her, the value or protection of these rights, the effect of the amendment clause on these rights, and any rights that the beneficiary may possess ex lege trust law.