A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations

Author: Mendy Khumalo

ISSN: 1996-2118
Affiliations: LLB LLM (UKZN); Lecturer, IIE Varsity College
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 191 – 208
https://doi.org/10.47348/SACJ/v37/i2a2

Abstract

The Tobacco Products Control Amendment Act 63 of 2008 introduced fundamental changes to the Tobacco Products Control Act 83 of 1993. This Amendment Act inserted ‘promotion’ in its definition section and prohibits such promotion in s 3(1)(a). The legislature defines ‘promotion’ as the practice of bringing awareness and inspiring a positive attitude towards a tobacco product for the purpose of encouraging tobacco use. The proposed Tobacco Products and Electronic Delivery Systems Control Bill provides for an even broader definition by including any form of communication, recommendation or action with the aim or effect of increasing the awareness of a tobacco product. The legislature’s definition of ‘promotion’ in the Tobacco Products Control Act, and the even more encompassing definition in the Tobacco Bill, effectively results in the criminalisation of customary practices which fall within the ambit of the aforementioned definitions. It is argued in this paper that the Gongqose judgment gives rise to a possible defence for persons charged with promoting snuff through customary practices.‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’

Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

Author: Philip Stevens

ISSN: 1996-2118
Affiliations: LLB LLM LLD (Pretoria); Professor in Criminal Law, Department of Public Law, University of Pretoria
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 209 – 234
https://doi.org/10.47348/SACJ/v37/i2a3

Abstract

The role of science and, more specifically, medical science in explaining criminal behaviour has been acknowledged since time immemorial. With reference to the defence of pathological criminal incapacity within the context of substantive criminal law, the role of mental health sciences is well established. The defence of pathological criminal incapacity has historically been rooted within the fields of forensic psychiatry and psychology. Recently the role of neuroscience in assessing criminal responsibility has become an issue of academic and practical debate. A question that falls to be assessed is whether the time has arrived to open the door to other sciences, such as neuroscience, to supplement the traditional mental health science model to assess criminal responsibility properly. In this article, the defence of pathological criminal incapacity will be used as an example of an area within substantive criminal law where the role of science becomes crucial in assessing criminal responsibility. The historical context of this area of criminal law will be canvassed against the backdrop of advances made in neuroscience to provide an alternative perspective to the traditional model of mental health science. From a procedural perspective, issues relating to the admissibility of neuroscientific evidence will be addressed in order to illustrate both the substantive criminal law pertaining to the theme of discussion as well as the procedural aspects relating to the theme.
‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’

Note: Minimum sentences for rape involving more than one perpetrator – Recent case law [Director of Public Prosecutions, KwaZulu-Natal Pietermaritzburg v Ndlovu (888/2021) [2024] ZASCA 23 (14 March 2024)]

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Note: Minimum sentences for rape involving more than one perpetrator – Recent case law [Director of Public Prosecutions, KwaZulu-Natal Pietermaritzburg v Ndlovu (888/2021) [2024] ZASCA 23 (14 March 2024)]

Author: Jolandi le Roux-Bouwer

ISSN: 1996-2118
Affiliations: Professor, Department of Criminal and Procedural Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 235 – 247
https://doi.org/10.47348/SACJ/v37/i2a4

Abstract

None

Re(de)fining defamation

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Re(de)fining defamation

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 4, p. 635-651
https://doi.org/10.47348/SALJ/v141/i4a1

Abstract

This note is about the definition of common-law defamation. The authoritative definition of common-law defamation (the wrongful and intentional publication of a defamatory statement concerning the plaintiff) is weighed against the five general elements of the common law of delict (conduct, damage, fault, wrong fulness, and causation) to determine to what extent the general and specific elements cohere. It is argued that the time has come to alter the definition of common-law defamation (slightly) to give a more accurate account of what courts do in defamation cases, which would also ensure greater unity between general and specific elements for liability.

Minister of Water and Sanitation v Msukaligwa Local Municipality: Is financial incapacity a valid excuse?

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Minister of Water and Sanitation v Msukaligwa Local Municipality: Is financial incapacity a valid excuse?

Author: Johandri Wright

ISSN: 1996-2177
Affiliations: Post-Doctoral Fellow, SARChI Chair in Multilevel Government, Law and Development, Dullah Omar Institute, University of the Western Cape
Source: South African Law Journal, Volume 141 Issue 4, p. 652-665
https://doi.org/10.47348/SALJ/v141/i4a2

Abstract

South African local government is failing to provide basic services. These services are important to realize many socio-economic rights. Municipalities often refer to their financial incapacity as an excuse for not delivering basic services. Minister of Water and Sanitation v Msukaligwa Local Municipality is an example of a judgment where the Municipality relied on its financial incapacity as a defence for not delivering water and sanitation services in accordance with national standards. The court rejected this defence. In terms of a structural interdict, the court ordered the Municipality to bring its service delivery in line with national standards under the relevant Minister’s supervision. This judgment is important for many reasons. This case note explores the contribution of this judgment to the law relating to financial incapacity as a justifiable defence for not delivering services where this impacts on the realization of socio-economic rights.

Lost in the fundamental contradiction: Revisiting Beadica

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Lost in the fundamental contradiction: Revisiting Beadica

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Jurisprudence, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 4, p. 666-684
https://doi.org/10.47348/SALJ/v141/i4a3

Abstract

In this note, I revisit the concept of the fundamental contradiction that Kennedy proposed in 1979 as the ‘essence of every legal problem’. I argue that the Constitutional Court post-Barkhuizen has not taken the fundamental contradiction seriously, and, as a result, the decision in Beadica exhibits the fundamental contradiction in a glaringly transparent manner. In the course of the discussion, I also consider the literature on ‘good faith’ that has emerged in the aftermath of Beadica and the attempts, it would be seem, to wrench some sort of coherence out of it. I suggest that it is only when the Constitutional Court becomes more sensitive to the actual progressive demands of transformation in the contractual realm, instead of being preoccupied with an elaboration of the continuation of a liberal status quo (as it is in Beadica), that it will be able to transcend forcefully out of the fundamental contradiction. For as long as courts hark back to the jurisprudence of yesteryear, they will remain caught in the fundamental contradiction to the point that they will render our jurisprudence devoid of meaning and coherence.

Seismic surveys in South Africa’s maritime domain: The Sustaining the Wild Coast cases

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Seismic surveys in South Africa’s maritime domain: The Sustaining the Wild Coast cases

Authors: Vishal Surbun & Paul Swanepoel

ISSN: 1996-2177
Affiliations: Senior Lecturer in Law, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 141 Issue 4, p. 685-702
https://doi.org/10.47348/SALJ/v141/i4a4

Abstract

The decision in Sustaining the Wild Coast & others v Minister of Mineral Resources and Energy & others represented a landmark victory for local communities in the Eastern Cape over prominent oil companies, notably Shell. The applicants sought an interim interdict in the High Court to prevent Shell from undertaking a seismic survey pursuant to an exploration right, pending the determination of an application for a final interdict. The High Court, in hearing the application for the final interdict, also considered various grounds of review under the Promotion of Access to Administrative Justice Act 3 of 2000, including procedural fairness and a failure to take into account relevant considerations. The High Court set aside the granting of the exploration right and its renewals. The Supreme Court of Appeal, however, despite dismissing an appeal by Shell, decided to suspend the setting aside of the exploration right and its two renewals pending the determination of a third renewal application. The note considers the judgments of the High Court and the Supreme Court of Appeal with a focused analysis of maritime intangible cultural heritage, concluding that this legal framework should be better integrated into the authorisation process for an exploration right.