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The inability of science to give reasonably definitive answers to many questions of the aetiology of disease and to identify the source of infection poses intractable problems for courts in dealing with questions of causation. These problems came to the fore in Lee v Minister of Correctional Services 2013 (2) SA 144 (CC). The article analyses the various judgments and concludes that, while the decision ultimately leaves the law unchanged it has generated uncertainty about the proper approach to causation. It highlights the impact that possible changes in approach have to the underlying principles of the law of delict and the onus of proof and the difficulties that have arisen in the United Kingdom as a result of judgments creating an exception to conventional principles of causation in relation to industrial diseases.

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In August 2015, the constitutionally empowered South African Commission for the Promotion and Protection for the Rights of Cultural, Religious and Linguistic Communities launched an investigative study into what it called the ‘commercialisation of religion’ (the notion that certain religious institutions abuse ‘people’s belief systems’ for financial gain). This was in response to a number of media reports concerning untoward practices by various religious organisations. In the final report relating to the Commission’s investigation, a number of recommendations were made, proposing more stringent and formalised regulation of religious institutions within South Africa. The Commission’s recommendations received substantial opposition from most religious organisations in South Africa, mostly relating to the fear that these recommendations will result in an unjustifiable limitation of the right to religious freedom. This article provides a brief analysis of the Commission’s powers and mandate in order to determine whether the Commission was acting within the scope of its powers. A discussion of the reports and recommendations of the Commission follows, and the proposed organisational structures (and their consequences) are discussed and tested against the South African constitutional framework and jurisprudence pertaining to the right to religious freedom. In conclusion, the legal validity of the Commission’s recommendations is investigated in light of the Constitution and international commentary.

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The participation of many underprivileged social clusters in the financial services sector has invariably been problematic in South Africa. This may be attributed to the country’s laws and policies implemented before and during the apartheid era to ensure the exclusion of the majority populations from key areas of the economy. This article discusses the linkage between protection of social grant beneficiaries’ private information and financial inclusion in light of the case of Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC). The article advances the argument that effective participation of social grant beneficiaries in the financial services sector can be realized if personal data protection measures are taken seriously. Nonetheless, it also points out that targeted financial literacy mechanisms together with effective policy implementation within the department of social development are also vital mechanisms that are central to promoting financial inclusion of social grant beneficiaries. Additionally, the authors discuss the new social grant distribution vehicle and suggest that staff training in relation to data protection is key to ensuring the protection of social grants beneficiaries’ personal information. The article concludes by emphasising the need to balance financial inclusion and data protection measures in order to ensure safe and effective participation of vulnerable social grant beneficiaries in the South African financial services sector.

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In giving meaning to the threshold concept of ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), courts should adopt a substantive, non-formalistic approach. Such an approach is mandated by the value-laden Constitution and its injunctions to interpret both the Bill of Rights and legislation so as to promote constitutional values. Substantive reasoning is more than the avoidance of formalism. It also means that courts are constrained by the constitutional and legislative text — a constraint that flows from the separation of powers and the rule of law. The challenge is to give meaning to the concept of ‘administrative action’ in a manner which promotes fundamental principles such as accountability, transparency and administrative justice, whilst respecting the text of PAJA. While a number of judicial decisions as to whether or not conduct amounts to ‘administrative action’ are imbued with substantive reasoning and stay on the path mapped out in the Constitutional Court’s jurisprudence, some appear to stray into formalism, while others veer off past what PAJA’s language would seem to permit.

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The growth of online communication, including social media, poses regulatory challenges for the state. There may be legitimate reasons to curb forms of online expression, such as hate speech, child pornography, incitement of imminent violence, defamation or copyright infringement. Yet censorship potentially infringes constitutional rights to freedom of expression, privacy, and just administrative action. This article explores the regulation of online expression in South Africa, focusing on the role of social media platforms in publishing or suppressing speech. We compare a range of direct and indirect strategies adopted by democratic states when enforcing their laws online, thereby demonstrating how South Africa combines ‘top-down state control’ with attempted case-by-case regulation of end-point users’ expression on social media. We argue that the legal framework in this context is underdeveloped, and draw on a model of ‘regulated self-regulation’ to propose a legal basis for judicial oversight over social media platforms’ decisions to censor or publish their users’ expression. Under existing law, our courts may review such decisions where they constitute exercises of discretionary contractual powers. This regulatory strategy accommodates the public role played by social media platforms, affording them sufficient scope to choose and implement their own policies, while setting a judicial safeguard for constitutional rights.

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The public-law concept of proportionality is defined by Cora Hoexter Administrative Law in South Africa 2 ed (2012) 344 as follows:

‘Proportionality may be defined as the notion that one ought not to use a sledgehammer to crack a nut. Its purpose is ‘‘to avoid an imbalance between the adverse and beneficial effects . . . of an action and to encourage the administrator to consider both the need for the action and the possible use of less drastic or oppressive means to accomplish the desired end’’. Two of its essential elements, then, are balance and necessity, while a third is suitability— usually referring to the use of lawful and appropriate means to accomplish the administrator’s objective.’

Jeffrey Jowell &Anthony Lester, in their influential essay ‘Proportionality: Neither novel nor dangerous’ (in Jeffrey L Jowell & Dawn Oliver (eds) New Directions in Judicial Review (1988) 51–2 and 59–60), made the point that disproportionality as a ground of review of administrative action is often hidden but nonetheless present in a number of judicial review cases. The concept of proportionality is central to the legal system generally and, even when it is not identified by name, it sometimes explains the basis for judicial review. Paul Craig (Administrative Law 6 ed (2008) para 19-010) supports this view, stating that it has been recognised in English law that ‘there are purely domestic cases where the courts have either explicitly applied proportionality or have reasoned in a manner analogous thereto’.