scholarly journals An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part Two

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Lee Swales
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
Regulatory Environment ◽  
Human Intervention ◽  
The South ◽  
Discussion Paper ◽  
Electronic Communications ◽  
Electronic Evidence ◽  
Definition Of

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission. Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in Discussion Paper 131 Review of the Law of Evidence in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person. Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the Electronic Communications and Transactions Act 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement. Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions.

scholarly journals An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part One

2018 ◽  
Vol 21 ◽  
pp. 1-30
Author(s):  
Lee Swales
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
Regulatory Environment ◽  
The Internet ◽  
Discussion Paper ◽  
Electronic Evidence ◽  
The Law ◽  
Hearsay Rule ◽  
Law Of Evidence

The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence – with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence. Technology has become an indispensable part of modern life.  In particular, the internet has facilitated new forms of business enterprise, and shifted basic communication norms.  From a legal perspective, technology has presented several novel challenges for courts and practitioners to deal with – one of these key challenges relates to electronic evidence, and in particular, the application of the hearsay rule to the digital environment. The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence and certain academic analysis has revealed inefficiency with the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence. With the pervasive and burgeoning nature of technology and the internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in the future, and hearsay electronic evidence in particular will play an increasingly important role in years to come. Consequently, this two-part article will seek to summarise and comment on the proposed anomaly with regard to the key definition insofar as electronic evidence is concerned – data messages – and discuss how the proposed version of the Cybercrimes and Cybersecurity Bill (B6-2017), read together with Electronic Communications and Transactions Act No. 25 of 2002 (ECT Act) will leave South Africa with conflicting definitions of this term.  Further, this article will analyse whether electronic evidence (data messages) can constitute hearsay within the meaning of section 3 of the Law of Evidence Amendment Act 45 of 1988; examine whether section 15 of the ECT Act should liberate electronic evidence from hearsay considerations; consider how real electronic evidence should be treated (as opposed to documentary hearsay evidence); consider the interaction of the statutory exceptions to the hearsay rule in the context of electronic evidence; analyse several analogous foreign jurisdictions – and consider how these jurisdictions treat hearsay electronic evidence; and finally, to conclude with several suggestions for law reform in the context of the SA Law Reform Commission Discussion Paper 131 Review of the Law of Evidence (2014).  

scholarly journals Comment on the Single Marriage Statute: Implications for Customary Marriages

2021 ◽  
Vol 24 ◽  
pp. 1-18
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
The South ◽  
Definition Of

The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

scholarly journals Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?

2021 ◽  
Vol 24 ◽  
pp. 1-27
Author(s):  
Lea Mwambene ◽  
Roberta Hlalisa Mgidlana
Keyword(s):  
South Africa ◽  
South African ◽  
Field Research ◽  
Law Reform ◽  
Cultural Significance ◽  
Discussion Paper ◽  
Awareness Campaigns ◽  
Research Findings ◽  
Public Consultations ◽  
Research Show

In 2014 the South African Law Reform Commission (SALRC)released a Discussion Paper on the practice of ukuthwala. TheDiscussion paper was revised and released again in 2015 toinclude public consultations and the proposed Prohibition ofForced Marriages and Child Marriages Bill (Prohibition Bill). TheProhibition Bill introduces an expanded crime of forcedmarriages and child marriages, including because of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paperinvestigates whether South Africa should criminalise ukuthwalaor not. The paper also examines the advantages anddisadvantages of criminalising breaches of ukuthwala in theprotection of women and girls affected by the practice by drawingupon the field research findings from the community where theS v Jezile 2015 2 SACR 452 (WCC) case originated. Amongother findings, the field research show that the practice ofukuthwala is deeply rooted in the communities where it is stillprevalent to the extent that the approach taken by the ProhibitionBill, expecting the victims to report their own parents or familymembers to law enforcement agents, might force the practice togo underground. Ultimately, we suspect that this might make itmore difficult to protect women and children's rights violationsassociated with ukuthwala. We therefore recommend that toeffectively address the malpractices surrounding ukuthwala, theprocess of law reform look at the elements of ukuthwala, theprocedure that is followed, appreciate the cultural significance ofthe practice, as well as understand the merits and demerits ofthe customary delictual claims that are already used bycommunities where processes of the practice have beenbreached. In this way, communities will be more receptive to anygovernment's efforts that are aimed at addressing forced andchild marriages linked to ukuthwala. In addition, we submit thatunless government prioritises awareness campaigns into thecommunities that are going to be affected by the proposed lawreform, such law, will again be what Himonga calls "paper law".

Update to the South African Stratigraphic Code and Guidelines for Standardised Lithostratigraphic/Lithodemic Descriptions

2019 ◽  
Vol 122 (2) ◽  
pp. 257-266
Author(s):  
C.H. de Beer
Keyword(s):  
South Africa ◽  
South African ◽  
High Grade ◽  
The South ◽  
Consensus Opinion ◽  
Definition Of ◽  
Robust Framework

Summary The South African Committee for Stratigraphy (SACS) is the official body in South Africa which regulates the nomenclature and definition of lithostratigraphic and lithodemic rock units, unconsolidated deposits and soils. The robust framework set in the existing stratigraphic code and guide for publication by the Council for Geoscience (CGS) have for many years provided leadership in this field, but there are a number of aspects in need of reconsideration. One example is the non-compliance of our nomenclature for high-grade supracrustal rocks with international (and South African) stratigraphic codes and another is manuscript format changes necessitated by publishing SACS descriptions in the SAJG. Any stratigraphic code is a living document that should be able to accommodate changing views and circumstances. This review provides a consensus opinion from experts on how to deal with changing needs.

Modified Road Traffic Signs in the South African Linguistic Landscape

2020 ◽  
Vol 4 (1) ◽  
pp. 1-18
Author(s):  
Lorato Mokwena
Keyword(s):  
South Africa ◽  
South African ◽  
Road Traffic ◽  
Linguistic Landscape ◽  
The South ◽  
Traffic Signs ◽  
Road Signs ◽  
Definition Of ◽  
Fluid Interpretation

Drawing on the linguistic landscape material of modified road traffic signs in different areas of South Africa, the article illustrates how modified traffic road signs continue to have situated contextual meanings regardless of altered physical placement or content. Drawing on semiotic repurposing this article argues for an extended definition of situated semiotics that takes into account repurposed signs. A fluid interpretation of ‘situatedness' will broaden the scope of what is perceived as situated semiotics and discourage the use of delinquent categories such as ‘transgressive' semiotics for ‘out of place' semiotics.

scholarly journals The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

2021 ◽  
pp. 1-23
Author(s):  
Amanda Spies
Keyword(s):  
South Africa ◽  
South African ◽  
Sex Work ◽  
Sex Workers ◽  
Legal Regulation ◽  
Law Reform ◽  
Constitutional Rights ◽  
The South ◽  
Sex Work Policy ◽  
Rights Discourse

Abstract This article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.

scholarly journals WHAT HAPPENED TO THE CHILD JUSTICE BILL? The process of law reform relating to child offenders

2006 ◽  
Author(s):  
Jacqui Gallinetti
Keyword(s):  
South Africa ◽  
South African ◽  
Justice System ◽  
Law Reform ◽  
The South ◽  
Child Rights ◽  
Public Hearings ◽  
State Of Affairs

Children who are accused of crimes in South Africa are governed by the same legislation as adults. The urgent need to develop a separate child justice system culminated in the release of the draft Child Justice Bill in 2000 by the South African Law Reform Commission (SALRC). A product of thorough research and consultation, the revised Bill was introduced to parliament in August 2002. The changes made after public hearings and debates in parliament in 2003 saw the whittling away of the overall child rights nature of the Bill. To add insult to injury, the legislation has, since that year, not been debated again before the portfolio committee and the legislature has provided no explanation for this state of affairs.

scholarly journals Die definiëring van persoonlike besparing: Die Suid-Afrikaanse situasie 1965.1 tot 1984.4

1987 ◽  
Vol 18 (1) ◽  
pp. 29-34
Author(s):  
P. Styger ◽  
J. H.P. Van Heerden
Keyword(s):  
South Africa ◽  
Time Series ◽  
South African ◽  
The South ◽  
Good Definition ◽  
Reserve Bank ◽  
Term Insurance ◽  
The Sixties ◽  
Personal Savings ◽  
Definition Of

The definition of personal savings: The South African situation 1965.1 to 1984.4 The personal savings definition and through that also the time series of personal savings in South Africa in common use, can be described as personal savings as published, amongst others, by the South African Reserve Bank. In the computation of the above time series there are certain deficiencies and the time series has been queried since the sixties. The objective of this study was to undertake an empirical study of the definition of personal savings in South Africa and through that also the time series of personal savings, and possibly to improve on these. It was indicated that the published personal savings cannot be regarded as a good definition of personal savings in South Africa. Various alternative personal savings definitions were studied critically and it was indicated that it would seem that long-term insurance premiums plus pension fund contributions (i.e. contractual personal savings) should constitute the personal savings definition for South Africa.

scholarly journals Human germline editing: Legal-ethical guidelines for South Africa

2020 ◽  
Vol 116 (9/10) ◽  
Author(s):  
Donrich Thaldar ◽  
Marietjie Botes ◽  
Bonginkosi Shozi ◽  
Beverley Townsend ◽  
Julain Kinderlerer
Keyword(s):  
South Africa ◽  
South African ◽  
Clinical Application ◽  
Social Inequalities ◽  
Legal Regulation ◽  
Regulatory Environment ◽  
The South ◽  
Ethical Guidelines ◽  
Legal Questions ◽  
African Ethics

Human germline editing holds much promise for improving people’s lives, but at the same time this novel biotechnology raises ethical and legal questions. The South African ethics regulatory environment is problematic, as it prohibits all research on, and the clinical application of, human germline editing. By contrast, the South African legal regulatory environment allows a regulatory path that would, in principle, permit research on human germline editing. However, the legal regulation of the clinical application of human germline editing is uncertain. As such, the current ethical and legal positions in South Africa are in need of reform. Five guiding principles – aligned with the values of the Constitution – are proposed to guide ethical and legal policy reform regarding human germline editing in South Africa: (1) Given its potential to improve the lives of the people of South Africa, human germline editing should be regulated, not banned. (2) Human germline editing clinical applications should only be made accessible to the public if they are proven to be safe and effective. (3) Non-therapeutic human germline editing may be permissible, and should be regulated in the same way as therapeutic human germline editing. (4) The decision on whether to use germline gene editing on a prospective child, should, subject to Principle 2, be left to the prospective parents. (5) Concerns about exacerbating social inequalities should be addressed by measures to increase access. In conclusion, recommendations are made to policymakers and scientists contemplating research in this field.

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