Lessons from Equal Opportunity Harassment: Severing the Harassment and Unfair Discrimination Link in the Employment Equity Act 55 of 1998

by | Oct 31, 2026 | SLR, SLR V37 I1

Lessons from Equal Opportunity Harassment: Severing the Harassment and Unfair Discrimination Link in the Employment Equity Act 55 of 1998

Author: Caitlin Stoltz

ISSN: 1996-2193
Affiliations: BA LLB LLM, PhD Candidate, Rhodes University
Source: Stellenbosch Law Review, Volume 37 Issue 1, 2026, p. 167-193
https://doi.org/10.47348/SLR/2026/i1a7

Abstract

In South Africa, the Employment Equity Act 55 of 1998 (“EEA”) specifically addresses harassment as a social ill in the workplace, identifying it as a form of unfair discrimination on listed and arbitrary grounds. Despite South Africa harnessing discrimination law to combat harassment and characterising it as a breach of the equality right, harassment remains pervasive in workplaces. Consequently, the fundamental question to be asked is whether discrimination law is the appropriate framework to deal with workplace harassment. This contribution outlines the prohibition of harassment as unfair discrimination in the EEA and sets out the inherent and inevitable difficulties that arise because of this. The contribution, furthermore, analyses the main reasons for the mismatch between harassment and unfair discrimination, as illustrated by the case of equal opportunity harassment. Finally, it proposes that a more effective way to address harassment in the workplace is to recognise it as a wrong in itself and sever its link with unfair discrimination.

In the Shadow of Violence: Advancing Contextual Justice for Abused Women who Murder their Intimate Partners

by | Oct 31, 2026 | SLR, SLR V37 I1

In the Shadow of Violence: Advancing Contextual Justice for Abused Women who Murder their Intimate Partners

Author: Amanda Spies

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Associate Professor, Department of Public Law, Nelson Mandela University
Source: Stellenbosch Law Review, Volume 37 Issue 1, 2026, p. 194-222
https://doi.org/10.47348/SLR/2026/i1a8

Abstract

When abused women kill their intimate partners, often in non-confrontational contexts, they face significant legal barriers as traditional defences, such as self-defence, are seldom available. Despite a progressive constitutional and legislative framework, the South African criminal justice system remains ill equipped to account for the lived realities of prolonged abuse in response to these cases. Grounded in a feminist legal framework, this contribution examines South African case law to assess whether a coherent sentencing approach has emerged and to highlight the structural and evidentiary challenges in advancing viable defences. It underscores the need for expert evidence capable of contextualising abuse and coercive control within broader socio-economic and historical frameworks. In doing so, the article explores the potential of an entrapment-based framework to move beyond the limitations of traditional defences and to expose the gendered assumptions embedded in legal reasoning. In the absence of a specific defence, the contribution argues for alternative sentencing approaches that better reflect the complex realities faced by abused women who kill.

Note on Irrevocable Authority in South African Law: The Saga Continues, and the Questions Remain Unanswered

by | Oct 31, 2026 | SLR, SLR V37 I1

Note on Irrevocable Authority in South African Law: The Saga Continues, and the Questions Remain Unanswered

Authors: Etienne Olivier & Fourie Kotze

ISSN: 1996-2193
Affiliations: LLB LLM (cum laude) LLD, Senior Lecturer, University of the Western Cape; BA LLM, Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 37 Issue 1, 2026, p. 223-236
https://doi.org/10.47348/SLR/2026/i1a9

Abstract

For nearly 120 years, South African courts have been grappling with the concept of an irrevocable authority – presumably a much-desired concept in business transactions, as demonstrated by the number of cases on this topic. Two distinct approaches have been identified: Some courts have held that an authority is irrevocable if the agent has a legitimate commercial interest in the authority, while the more common approach is that an authority can be irrevocable only if it is “coupled with an interest”. Unfortunately, due to contradictory judgments, the meaning of the phrase “coupled with an interest” has never been absolutely certain. Recently, uncertainty resurfaced in Medicross Healthcare Group (Pty) Ltd v Dr LH Linde & Associates. In an effort to provide context for this dilemma, this note presents an overview analysis of South African case law on irrevocable authority, questioning whether the law has become settled, certain and predictable, and identifying remaining unanswered questions. This note argues that judgments holding that an authority is irrevocable if the agent has a legitimate commercial interest in the authority should be disregarded as having been tacitly overruled by subsequent decisions of the Supreme Court of Appeal. It seems that the only true irrevocable authority exists where it was granted either as security, or as a means of protecting or facilitating security rights granted through, for example, a cession or mortgage. However, as this note will show, there is no clarity on whether both are instances where the authority is truly irrevocable, or only because of the security rights already acquired. Unfortunately, there are no certain and comprehensive answers to these questions in the law. Until the courts or the legislature definitively clarify these issues, the law on authority will remain in an unsatisfactory state.

There is No “Action” for Pain and Suffering

by | Oct 31, 2026 | SLR, SLR V37 I1

There is No “Action” for Pain and Suffering

Author: Leo Boonzaier

ISSN: 1996-2193
Affiliations: BSocSci LLB BCL DPhil, Associate Professor, Department of Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 37 Issue 1, 2026, p. 237-270
https://doi.org/10.47348/SLR/2026/i1a10

Abstract

South African scholars of the law of delict widely claim that our law contains a “self-standing” or “unique” action for pain and suffering that is separate and distinct from the Aquilian action. This contribution argues against this claim. While the South African law of delict undoubtedly allows a plaintiff who has been caused bodily injury by the defendant’s negligence to recover damages for pain and suffering (in addition to the injury’s patrimonial consequences), these awards are best conceptualised as part of the Aquilian action. Indeed, this was the conceptualisation almost universally adopted by South African authorities before the 1960s and, even today, it corresponds more accurately with our law. It is also the view that is widely adopted in foreign law. This contribution shows that none of the reasons offered in defence of the new South African orthodoxy is convincing. First, while the historical origins of awards for pain and suffering are somewhat unusual, they do not illuminate the correct conceptual classification of such awards. Second, although our judicial precedents hold that claims for pain and suffering, unlike Aquilian claims for patrimonial loss, are intransmissible and incapable of cession, these precedents do not require and should not be interpreted to mean that the two are fundamentally different action-types. Third, there is no sound reason to insist on the separateness of awards for pain and suffering merely because they constitute an exception to the general rule that Aquilian damages compensate patrimonial harm. In the end, the notion that there is a separate “action” for pain and suffering seems to rest on a misguided desire for conceptual neatness, which distorts the basic truth that awards for pain and suffering are coincident with Aquilian liability.

A Right to Remain: Spatial Justice and a Transformative Approach to Housing Rights

by | Oct 31, 2026 | SLR, SLR V37 I1

A Right to Remain: Spatial Justice and a Transformative Approach to Housing Rights

Author: Rammaka Steven Mathopo

ISSN: 1996-2193
Affiliations: Justice of the Constitutional Court of South Africa
Source: Stellenbosch Law Review, Volume 37 Issue 1, 2026, p. 271-288
https://doi.org/10.47348/SLR/2026/i1a11

Abstract

This contribution highlights an emerging principle in human rights jurisprudence: that development should not result in historically disadvantaged and vulnerable communities being forced to relocate from areas where they have deep roots, as a result of development projects from which they are excluded due to their socio-economic circumstances. This “right to remain” is the affirmative assertion that spatial justice requires not only the redistribution of land and resources, but the protection of people’s existing connections to place, community, and livelihood. Spatial justice further requires that our physical spaces, our cities, our towns, and our rural lands must be developed and shared in a manner that is fundamentally equal and fair, and that actively heals our historical divisions. A transformative approach to housing rights, therefore, requires a housing framework that is attentive not only to the provision of shelter, but also to the conditions under which individuals and communities can remain in the urban spaces they inhabit, thereby protecting human dignity. Furthermore, the courts must ensure that in their jurisprudence the principles of spatial justice are applied when substantive justice requires it.

Fitting In in an Unwelcoming Community: A Pragmatic and Value-based Case for Extending The Right to Vote to Permanent Residents in South Africa

by | Jun 16, 2026 | SLR, SLR V36 I3

Fitting In in an Unwelcoming Community: A Pragmatic and Value-based Case for Extending The Right to Vote to Permanent Residents in South Africa

Author: Lindo Hadebe

ISSN: 1996-2193
Affiliations: LLB LLM LLM, Researcher at SAIFAC, a centre of the University of Johannesburg
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 373-400
https://doi.org/10.47348/SLR/2025/i3a1

Abstract

In South Africa, permanent residents and other categories of non-citizens experience marginalisation and discrimination as a result of their non-citizen status, which is most pronounced by their exclusion from the franchise. The exclusion of permanent residents from suffrage is particularly curious, given their enormous contributions to the social and economic spheres of South African society, which are on par with and in some instances exceed those of citizens. Moreover, the exclusion of permanent residents is unjustifiable in the context of South Africa’s constitutional framework, founded on the values of dignity and equality. Using arguments based on political philosophy, this contribution will show that to exclusively attach political membership to citizenship is no longer fit for purpose, given the indistinguishable role that permanent residents play in the body politic compared to citizens. The contribution will thereafter show how the exclusion of permanent residents amounts to unfair discrimination under the test developed in Harksen v Lane. The legal assessment will reveal that the irrational exclusion of permanent residents from the right to vote is an unjustifiable harm to their dignity and equality. The contribution will suggest a constitutionally accommodative approach to interpret section 19 of the Constitution that can extend the right to vote to permanent residents, thereby mitigating the unjustifiable harm caused by their current exclusion.