Setting boundaries for image misappropriations through online catfishing

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Setting boundaries for image misappropriations through online catfishing

Authors: Lisa Ndyulo & Nomalanga Mashinini

ISSN: 1996-2185
Affiliations: LLM Graduate, Rhodes University; Senior Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 332 – 347
https://doi.org/10.47348/SAMLJ/v34/i3a2

Abstract

Social networking platforms have popularised catfishing, which entails creating and using a fake social media account to exploit other users. Catfishing involves acts of online misappropriation because the traits of a person’s identity, such as a name and photograph, can be used by a catfish to pose as another person to deceive other users. Image rights are frequently affected by such acts of impersonation. This article determines whether mere misappropriation of identity suffices as a cause of action for image rights violations. The South African courts must clarify whether mere misappropriation constitutes a ground for violating identity in catfishing cases. Thus, the courts should recognise mere misappropriation as sufficient to yield a claim when the falsification and commercial exploitation of identity cannot be proven. Such an approach will allow for the speedy resolution of disputes and will also ensure that justice is served before the plaintiff suffers irreparable harm as a result of image misappropriations on social media.

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

Author: Etienne Olivier

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile and Labour Law, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 348 – 381
https://doi.org/10.47348/SAMLJ/v34/i3a3

Abstract

Section 20(9) of the Companies Act 71 of 2008 (the Act) is a statutory version of the common-law remedy of piercing the corporate veil. Unfortunately, the legislature, by leaving undefined the phrases ‘interested person’, ‘unconscionable abuse’ and ‘any further order necessary to give effect to the declaration’ in s 20(9) of the Act, has left room for uncertainty regarding the interpretation of the section. After discussing the purpose of s 20(9) of the Act, the article makes recommendations for how the statutory veil-piercing remedy should be interpreted. The article suggests the inclusion in the Act of an extensive and open-ended definition of ‘unconscionable abuse’ that describes categories of abuse sufficient to justify piercing of the corporate veil. It is argued that the term ‘interested person’ should be read to exclude a company’s controllers acting for their own benefit when the controllers themselves have committed the unconscionable abuse. It is argued further that a court’s power to grant ‘any further order’ in addition to a disregarding of separate legal personality should be limited to orders that are necessary to provide adequate relief for the litigant that invokes s 20(9), namely impositions of rights and liabilities.

Accountability in the twin peaks model of financial regulation in South Africa

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Accountability in the twin peaks model of financial regulation in South Africa

Authors: Gerda van Niekerk & Hoolo ’Nyane

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Limpopo; Associate Professor of Public Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 382 – 403
https://doi.org/10.47348/SAMLJ/v34/i3a4

Abstract

The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

An analysis of the causes of violence during strike action in South Africa: A psychological perspective

Author: Carlos J Tchawouo Mbiada

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of Venda
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 404 – 420
https://doi.org/10.47348/SAMLJ/v34/i3a5

Abstract

Peaceful strikes in post-apartheid South Africa are uncommon. Most industrial action is associated with violent acts to the extent that violence seems to be the norm. Different scholarly contributions regarding the causes of the high number of violent strikes in South Africa have been made; most of these, this article argues, are sociologically and legally inclined. Using the Freudian political psychology theory and the frustration-aggression hypothesis, this article opines that episodic waves of violent activities during strike action are subject to the psychological imbalances and frustrations emanating as a twin phenomenon of intrinsically motivated apartheid posttraumatic effects and people’s inability to meet their basic needs of life. Using an orderly and systematic review of the literature, the article unpacks the causes of violent strikes in South Africa in a psychological manner.

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited

Author: Vuyo Ntsangane Peach

ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 421 – 434
https://doi.org/10.47348/SAMLJ/v34/i3a6

Abstract

None

DNA phenotyping: A possible aid in criminal investigation

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

DNA phenotyping: A possible aid in criminal investigation

Authors: Lirieka Meintjes-van der Walt and Adebola Olaborede

ISSN: 1996-2118
Affiliations: B Juris LLB (UPE) LLM (Rhodes) DJuris (Leiden); Adjunct Professor of Law and Leader of the Law, Science and Justice Research Niche Area, University of Fort Hare; LLB (Nigeria) LLM (Stellenbosch) LLD (UFH); Time on Task Lecturer, Faculty of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 1 – 23
https://doi.org/10.47348/SACJ/v36/i1a1

Abstract

This article examines DNA phenotyping in general and highlights international perspectives regarding the use of this technique. The article interrogates the genetic basis of predicting externally visible characteristics, the potential value of the technique, and the pitfalls regarding its use. Despite the ethical and legal concerns and debates concerning DNA phenotyping, the potential value of this technique should not be underestimated. In the context of the high number of serious crimes such as rape and murder that remain unsolved in South Africa, the responsible and scientific application of DNA phenotyping might prove to be an effective additional tool in criminal investigation.

Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings

Author: CF Swanepoel

ISSN: 1996-2118
Affiliations: BA LLB (Stellenbosch) LLM LLD (University of the Free State), Research Associate, Department of Public Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 24 – 41
https://doi.org/10.47348/SACJ/v36/i1a2

Abstract

South Africans have become accustomed to almost daily news reports of litigation in our courts that involve politically powerful and well-connected individuals. The perception by the public is that in many instances litigants approach the courts for other reasons than achieving justice and are therefore misusing our courts and its processes.1 This becomes a matter of concern when such perceptions affect the trust and confidence that the public holds in respect of the judicial system and the rule of law. The recent Free State asbestos pre-trial motion proceedings illustrate some of these concerns. This article first comments on the judgment of the Free State high court in this matter, and focusses on the unmeritorious aspects of the applications made. These aspects included a claim that the applicants’ right to a fair trial were infringed, and the applicants’ disregard for the established principle against preliminary civil motions emanating from criminal proceedings. Legal practitioners advise their clients and must do so responsibly. For that reason, the second part of the article comments on the professional rules of conduct against the abuse of the court process in relation to legal practitioners’ obligations to both their clients and the court. This duty includes not to litigate causes or raise defences that have little chance of success or where they are initiated by litigants for purposes other than achieving justice. Improper purposes include delaying the proceedings to escape criminal liability and ultimately, accountability. In order to curb pre-trial litigation in any court other than the criminal trial court, the article proposes an extension of the Criminal Procedure Act to clarify when such other court may be approached for relief. It also proposes that a certificate of probable cause accompanies all pre-trial motions that emanate from criminal proceedings in a court other than the trial court.

Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (UP) LLM (UFS) LLD (UWC). Professor, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 42 – 57
https://doi.org/10.47348/SACJ/v36/i1a3

Abstract

Section 78 of the Correctional Services Act (the Act) empowers the Minister of Justice and Correctional Services (the minister) to grant parole to an offender serving a life sentence (lifer). Between 2004 and 2008, a court had the power to place a lifer on parole. However, this power was transferred from the court to the minister in 2008. In Walus v Minister of Justice and Correctional Services, the Constitutional Court relied on the pre-2008 version of s 78 of the Act to hold that a court has the power to release a lifer on parole. The court ordered the minister to place the offender on parole after finding that the decision to decline his parole application was irrational. It is argued that although the court correctly invoked the principle of rationality to order the minister to place the offender on parole, it erred when it held that s 78 of the Correctional Services Act empowered it to order the minister to place the offender on parole. It is also argued that the court erred when it equated the non-parole period with a sentencing remark. It is argued further that since rehabilitation is the most important factor in deciding whether an offender should be granted parole, the Correctional Services Act may have to be amended to provide for the offender’s right to access effective rehabilitation programmes.

Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

Authors: Leandré C Geoffrey and Marelize I Schoeman

ISSN: 1996-2118
Affiliations: BA BA(Hons) MA PhD BA(Hons) (Unisa), Senior Lecturer, School of Criminal Justice and Criminology, University of Limpopo; BA MA DPhil (Pretoria), Professor, Department of Criminology and Security Sciences, School of Criminal Justice, College of Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 58 – 82
https://doi.org/10.47348/SACJ/v36/i1a4

Abstract

The significant prevalence of psychiatric disorders in child offenders requires the justice system to provide direction in the treatment of these children. This submission considers whether the Children’s Act 38 of 2005, the Child Justice Act 78 of 2008, the Criminal Procedure Act 51 of 1977 and the child justice procedures uphold the best interests of child offenders with a mental illness or defects by juxtaposing South African legislation and child justice procedures with the best interests standard principle. The authors conclude that current legislation and legal procedures are not in the best interests of children with psychiatric disorders. Children with mental illness or defects are not adequately protected and they cannot participate equally in justice delivery processes. Furthermore, adequate consideration is not given to the affect of mental disorders or defects in decisions during child justice proceedings. It is recommended that the Child Justice Act be amended to include a section in which the rights of children with psychiatric disorders are protected and measures be put in place to address their psychosocial and developmental needs. Children with psychiatric disorders who are in conflict with the law should be classified as children in need of care and protection to break the causal nexus between psychiatric disorders and delinquency.

The adequacy of rape criminalisation in modern South Africa: A comparative study

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

The adequacy of rape criminalisation in modern South Africa: A comparative study

Authors: Rinda Botha and Janine Peens

ISSN: 1996-2118
Affiliations: BIuris (UFS) LLB (UFS) LLM (UFS) LLD (UFS), Senior Lecturer, Faculty of Law, University of the Free State; LLB (UFS) LLM (UFS)
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 83 – 122
https://doi.org/10.47348/SACJ/v36/i1a5

Abstract

In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.