Reforming TRIPS For Global Health Equity: Lessons from Covid-19 and the Failure of IP Flexibilities in Pandemic Preparedness

by | Feb 14, 2026 | SAIPLJ, SAIPLJ 2025

Reforming TRIPS For Global Health Equity: Lessons from Covid-19 and the Failure of IP Flexibilities in Pandemic Preparedness

Author Emmanuel Omondi Odera

ISSN: 2521-2591
Affiliations: Public Health Expert, Child Rights Research Center, Africa University, Zimbabwe
Source: South African Intellectual Property Law Journal, 2025, p. 111-130
https://doi.org/10.47348/SAIPL/v13/i1a6

Abstract

The Covid-19 pandemic exposed critical weaknesses in the global intellectual property (IP) regime, particularly the pre-existing flexibilities within the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in ensuring equitable access to essential medical technologies. This study critically examines how these TRIPS flexibilities failed to facilitate timely and equitable access to Covid-19 vaccines, therapeutics, and diagnostics across low- and middle-income countries (LMICs) in sub-Saharan Africa. Using The Gambia as a focal case, the study applies a desk-based legal and policy analysis, thematic content analysis, and comparative case study approach. Findings reveal that procedural complexity, political pressure, and limited technology transfer hindered the operationalisation of compulsory licensing (art 31) and voluntary initiatives, while gaps in trademark enforcement exacerbated the circulation of counterfeit medicines. The paper proposes targeted reforms, including integrating automaticity into TRIPS flexibilities, mandating binding technology transfer obligations in the Pandemic Accord, and strengthening regional manufacturing hubs. These interventions aim to embed equity, resilience, and global solidarity into the IP system, ensuring that intellectual property protections support, rather than undermine, public health during future emergencies.

‘As long as she lives a chaste life’: The constitutionality of the ‘dum casta’ clause in post-divorce South African spousal maintenance agreements

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

‘As long as she lives a chaste life’: The constitutionality of the ‘dum casta’ clause in post-divorce South African spousal maintenance agreements

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 1-13
https://doi.org/10.47348/SALJ/v143/i1a1

Abstract

In current South African matrimonial law, a dum casta clause may be inserted into a divorce agreement between the parties to provide that the duty to pay spousal maintenance after divorce will cease when the maintenance recipient (usually the wife) remarries, dies or lives together with another person in a relationship akin to marriage. This note examines the nature of dum casta clauses in agreements regarding post-divorce spousal maintenance, focusing on their purpose, background, context and constitutionality. We examine the clause through a constitutional lens and with reference to international law, the courts’ constitutional duty to develop the common law in line with the Bill of Rights, the Promotion of Equality and Prevention of Unfair Discrimination Act, and from a public policy perspective. We conclude that this clause, if strictly interpreted, violates the constitutional rights of the maintenance recipient and that such clauses should be declared contrary to public policy.

Cassim NO v MEC, Department of Social Development, Free State: A missedopportunity to set the parameters on exclusionary criteria in school admission processes for children with disabilities

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

Cassim NO v MEC, Department of Social Development, Free State: A missedopportunity to set the parameters on exclusionary criteria in school admission processes for children with disabilities

Authors: Willene Holness & Ruth Nyamadzawo

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Post-doctoral Fellow, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 143 Issue 1, p. 14-36
https://doi.org/10.47348/SALJ/v143/i1a2

Abstract

Children with disabilities frequently experience significant problems when seeking admission to educational and alternative care settings, sometimes with conditions being attached to their admission. Cassim NO v MEC, Department of Social Development, Free State 2021 (1) SA 184 (FB) demonstrated that the conditional admission of a child with multiple disabilities and experiencing substance-abuse challenges to a special school is unconstitutional, even during a global humanitarian crisis such as the COVID-19 pandemic. The court determined that the school’s exclusionary admission criteria were discriminatory, breaching her rights to education and to access care. Although the decision did not address in detail the negative implications of delayed school enrolment, the case emphasised the urgent need for legislative reform concerning admission procedures for children with high-level support requirements to enhance inclusive education.

Disability discrimination or incapacity dismissal? A commentary on Gugwini v National Consumer Commissioner

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

Disability discrimination or incapacity dismissal? A commentary on Gugwini v National Consumer Commissioner

Author: Lindani Mkhwanazi

ISSN: 1996-2177
Affiliations: Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 1, p. 37-49
https://doi.org/10.47348/SALJ/v143/i1a3

Abstract

This note examines the distinctions between dismissing an employee due to a disability, on the one hand, and incapacity resulting from ill health or injury, on the other hand. Only the latter is permitted and considered fair by the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. The note provides a critical analysis of Gugwini v National Consumer Commissioner (2023) 44 ILJ 2237 (LC) by examining the Labour Court’s decision and its failure to consider how visually impaired employees may be reasonably accommodated in the workplace.

You cannot contract out of the National Credit Act in a supplementary agreement: A consideration of Absa Bank Ltd v Serfontein

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

You cannot contract out of the National Credit Act in a supplementary agreement: A consideration of Absa Bank Ltd v Serfontein

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 50-67
https://doi.org/10.47348/SALJ/v143/i1a4

Abstract

The implementation of the National Credit Act 34 of 2005 has undoubtedly created greater consumer protection in South Africa. Unfortunately, the Act is not always clear, and undesirable drafting has resulted in inconsistent interpretation and application. One glaring lacuna in the Act is its failure to define the term ‘supplementary agreement’, leaving it uncertain what types of documents fall within the scope of a supplementary agreement, and whether the Act fully governs such agreements. Another flaw in the National Credit Act is that it is not clear whether contracting parties to a credit agreement can agree to contract out of — ie exclude the applicability of — the provisions of the National Credit Act in a supplementary agreement. This flaw has potentially created room for unscrupulous credit providers to evade the applicability of certain provisions of the Act, or the entire Act, by entering into a supplementary agreement with a consumer. The recent case of Absa Bank Ltd v Serfontein 2025 (3) SA 345 (SCA) addressed some of these issues and highlighted the need to remedy these gaps.

Enforcing living wills in South Africa

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Enforcing living wills in South Africa

Authors: Elsje Bonthuys & Anton van Dalsen

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand, Johannesburg; BA (Pretoria) LLB (Stellenbosch)
Source: South African Law Journal, Volume 143 Issue 1, p. 68-92
https://doi.org/10.47348/SALJ/v143/i1a5

Abstract

This article examines some theoretical and practical issues concerning the implementation of living wills, also known as advance directives, on the assumption that legislation on the general issue of physician-assisted dying in South Africa is unlikely to be enacted soon. Pending the adoption of legislation, living wills provide an avenue for people to exercise meaningful choices about medical treatment near the end of life. Yet, medical practitioners and even courts often overlook the existence of living wills, despite the requirement of informed consent for any medical treatment. Four main factors impede the enforcement of these documents: first, the argument that the appointment of a person as a proxy decision-maker lapses when the maker of the living will becomes incompetent to express their views; secondly, ambiguity and contradictions in the law relating to assisted dying which are exacerbated by the medical professional guidelines; thirdly, the focus on criminal liability in the case law impedes the full development of the jurisprudence on this topic; and, fourthly, the practical difficulties in making the existence of living wills known to medical personnel at the time when they should be implemented. The article concludes by suggesting some ways to overcome these difficulties.

The enforceability of and contractual remedies for breach of extended notice periods in employment

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

The enforceability of and contractual remedies for breach of extended notice periods in employment

Author: Judith Geldenhuys

ISSN: 1996-2177
Affiliations: Senior Research Associate, University of Johannesburg
Source: South African Law Journal, Volume 143 Issue 1, p. 93-118
https://doi.org/10.47348/SALJ/v143/i1a6

Abstract

This article examines two key remedies available to employers — specific performance and damages — when employees breach agreed notice requirements. While the common-law position on termination by notice is largely settled, enforcing extended notice clauses remains a legally complex matter. Drawing on recent case law, the article explores the evidentiary and doctrinal thresholds for relief and traces a shift in judicial reasoning towards fact-sensitive adjudication. This evolution signals a deeper commitment to balancing enforceability, fairness and the realities of the modern workplace.

Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 119-154
https://doi.org/10.47348/SALJ/v143/i1a7

Abstract

This article examines some pertinent interpretational issues concerning the statutory framework relating to requisitioned shareholder meetings in terms of s 61(3) of the Companies Act 71 of 2008. The purpose is to assess the efficacy of this statutory framework, including its interpretation by the courts, in promoting shareholder governance while balancing the rights and obligations of company shareholders and directors. The article also assesses whether s 61(3) and its related provisions on requisitioned shareholder meetings are aligned with the trends in other modern corporate-law jurisdictions, particularly the United Kingdom, Australia and Canada. The article finds that while s 61(3) provides for an uncomplicated procedure that seeks to facilitate, rather than deter, requisitioned shareholder meetings, a fundamental weakness of the Companies Act in this regard is that it does not directly regulate the time frames within which a requisitioned shareholder meeting must be convened. Furthermore, the Act does not grant requisitionists the right to call and hold a requisitioned shareholder meeting if the directors have failed to do so. Moreover, the Act tends to be lenient on directors who ignore, unduly refuse or delay the calling of a requisitioned shareholder meeting. The article makes recommendations for legislative reform in South Africa to strengthen shareholders’ rights and directors’ accountability in the context of requisitioned shareholder meetings. It also provides recommendations on how the courts should interpret certain provisions of the Companies Act to advance the underlying objectives of requisitioned shareholder meetings, thereby enhancing corporate governance standards in South Africa.

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

Author: Tebello Thabane

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 1, p. 155-183
https://doi.org/10.47348/SALJ/v143/i1a8

Abstract

This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual ‘acting in the public interest’ — an ‘ideological plaintiff’ — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.

Protection down the road: Car shapes and intellectual property law

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Protection down the road: Car shapes and intellectual property law

Authors: Gretchen Jansen & Dennis Wurm

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, Stellenbosch University; Research assistant and PhD student in Public Law and International Economic Law, Universität Siegen, Germany
Source: South African Law Journal, Volume 143 Issue 1, p. 184-214
https://doi.org/10.47348/SALJ/v143/i1a9

Abstract

The automotive industry is of growing importance in South Africa. To maintain the country’s appeal as an international business hub for foreign automakers, the law should provide sufficient protection for automakers with regard to the shape of their vehicles. This article considers the extent to which South African intellectual property law provides protection for the shape of a motor vehicle. The law is examined comparatively, with the approaches in the European Union and the United Kingdom investigated to determine whether South African intellectual property law meets international standards in this context. It is argued that the law of registered designs remains the primary method of protection for car shapes, but that trade mark law and copyright law can be developed to offer supplementary avenues to enhance protection in this area.