scholarly journals SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART ONE

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Stephen Peté ◽  
Sarah Pudifin
Keyword(s):  
South Africa ◽  
South African ◽  
Public Art ◽  
African State ◽  
Public Works ◽  
Constitutional Democracy ◽  
The Law ◽  
Case Part ◽  
The Right ◽  
Public Bodies

Politics, art and the law make uncomfortable bedfellows. The commissioning of public art by public bodies, in particular, often gives rise to bitter controversy. As a recent ongoing public spat over the suitability of a sculpture of three large elephants in the Durban area attests, South Africa is not immune from such controversy. Using the facts of this particular case as a lens, this article seeks to address the following central question: In the context of post-apartheid South Africa, when public works of art are commissioned by public bodies, to what extent do state officials have the right to involve themselves and/or interfere in the process? After outlining salient details of the Durban elephant sculpture case, part one of this article seeks to situate the central issues raised in their historical and ideological context. It then proceeds to address the issue of the “proper” relationship to be maintained between state officialsand public art within a constitutional democracy such as South Africa. A strong case is made that the values of tolerance, openness and diversity should be central in setting the broad parameters of the present debate on this issue. In particular, it is argued that the South African state should adopt a “hands-off” and “arms-length” approach when it comes to the funding and commissioning of public art. Part one of this article concludes with a discussion on the legitimate limits to free artistic expression. 

scholarly journals SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART TWO

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Stephen Allister Peté ◽  
Sarah Pudifin
Keyword(s):  
South Africa ◽  
South African ◽  
Public Art ◽  
Public Works ◽  
Moral Rights ◽  
Legal Rights ◽  
The South ◽  
Works Of Art ◽  
The Law ◽  
Public Bodies

As pointed out in part one of this article, politics, art and the law make uncomfortable bedfellows, and the commissioning of public art by public bodies often gives rise to bitter controversy. Part one traced a recent ongoing public spat in the Durban area concerning a sculpture of three large elephants by the acclaimed international artist, Andries Botha. Using that case as a lens, part one attempted to situate the central issues surrounding the commissioning of public art by public bodies in post-apartheid South Africa within a broad historical, political and constitutional framework. Part two of this article examines certain of the more specific and salient legal issues which the authors believe South African courts dealing with matters of this kind will need to address. The possible legal rights of both the South African public when confronted with undue state interference in matters of public art, as well as those of individual artists involved in such matters, are discussed. In relation to the rights of the South African public, the constitutionality of the commissioning process itself (that is, potential constitutional constraint on the actions of public officials who commission public works of art), as well as the potential right of the general public to the preservation of works of art of “recognized stature”, is discussed. As for the rights ofindividual South African artists, a number of areas of the law – constitutional, contractual and statutory – as possible sources for such rights are examined. In particular, the “moral rights” of South African artists, protected in terms of statute, are analysed and discussed in detail. The authors conclude that the funding and commissioning of public art by public bodies in South Africa should be arms-length, and that artists should be maximally free to determine the content of their creative expression. Furthermore, public art should be as diverse as possible within South Africa’s constitutional democracy, reflective of the beautiful diversity of the country’s people. Direct political interference in matters of public art should be strenuously avoided.

scholarly journals SECTION 27 OF THE INSOLVENCY ACT 24 OF 1936 AS A VIOLATION OF THE EQUALITY CLAUSE: A CRITICAL ANALYSIS

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Zingaphi Mabe
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
Department Of Justice ◽  
Current Form ◽  
The World ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
Made In

The Constitution of the Republic of South Africa, 1996, is regarded as one of the most progressive constitutions in the world. As the supreme law in South Africa, it applies to all law and conduct. All South African laws must be consistent with the Constitution. Where there is an alleged violation of constitutional provisions, that law or conduct must be evaluated to establish whether or not it is consistent with the values of an open and democratic society based on fundamental human rights such as human dignity and the right to equality.The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. Section 27(1) provides:"No immediate benefit under a duly registered antenuptial contract given in good faith by a man to his wife or any child to be born of the marriage shall be set aside as a disposition without value, unless that man's estate was sequestrated within two years of the registration of that antenuptial contract."This section protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. The same protection is not afforded however, to benefits given by the wife under an antenuptial contract. This also excludes benefits given by those in a same sex marriage, and limits the benefits available to children born of that form of marriage.As the right to equality in section 9 of the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination, the limitations in section 27 render it vulnerable to constitutional review.As the Insolvency Act has not been amended as a whole to accommodate the equality provisions in the Constitution, in its current form, section 27 seems to violate section 9(3) of the Constitution on the grounds of sexual orientation, marital status and birth.However, certain proposals have been made in the report by the South African Law Reform Commission on the Review of the Law of Insolvency to develop section 27 to comply with the Constitution. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006.This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27.The discussion opens with a consideration of the current dispensation and the question whether section 27 violates section 9(3) of the Constitution. Current developments will then be discussed in the light of the current proposals.

scholarly journals Editorial

2015 ◽  
Vol 18 (6) ◽  
pp. 0-0
Author(s):  
Marius Smit
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Education Law ◽  
Educational Institutions ◽  
Legal Analysis ◽  
The South ◽  
South African Society ◽  
The Law ◽  
The Right

2015 Volume 18 Number 6 Special Edition 21 December 2015 Editorial At a juncture in time when two decades have passed since the establishment of a constitutional democracy in South Africa and almost twenty years since the commencement of the South African Schools Act, this special issue reflects on the interrelationship between Education and the Law.  This compilation of ten articles includes a historic look at Education Law as a field of study and reflects on a range of topical issues such as safeguarding learners against exposure to pornography, promoting safety in youth sport, the essentiality of ensuring open deliberative democratic practices during school elections, the role of educator “prosecutors” in disciplinary hearings of learners, pluralism as overriding consideration by the courts, as well as the rights to freedom of expression and life in relation to education. In many respects the multicultural plurality in most educational institutions depicts the coalface of the South African society. Legal disputes and conflicting interests in schools about equal access to quality education, promotion of African languages and non-diminishment of Afrikaans in the face of English hegemony and the accommodation of religious diversity echo the realities of life in South Africa. Johan Beckmann’s personal account provides a historic look at the beginnings of Education Law as a field of study in South Africa expresses the hope that more South African universities will become involved in studying the field of Education Law and that a joint partnership between educationists and jurists might develop in future. Stuart Woolman’s insightful article contends that the constitutional aim to promote pluralism as the grundnorm in South Africa explains some seemingly anomalous judgments in the education context. This plausible explanation leaves much food for thought, but also raises an array of questions. Should the paradigmatic notion of pluralism trump all other legal principles in a constitutional democracy? Are the principles of legality, justice and fairness not as important? Should pluralism underlie the adjudication process of balancing of rights and freedoms according to contextual circumstances in spite of unreasonable or unlawful state action?  Have the courts not merely shown deference to an external political schema as arbiter of what "the good life" should be? The criminalisation of exposing children or learners to pornography is particularly relevant in schools in this era of ready access to the internet and social media and is aptly explained by Susan Coetzee. Marius Smit appositely combines legal analysis of provincial regulations with qualitative research, in keeping with the methodology of social sciences, to provide evidence of undemocratic conditions and features as well as shortcomings in the system of school governing body elections.  Greenfield et alia contend that a detailed and textured approach to coach education, coupled with a more nuanced judicial appreciation of the importance of sport to society (and schools) and a positive interpretation of the ‘prevailing circumstances’, may help prevent widespread expansion of liability in both rugby and sport more generally. Michael Laubscher and Willie van Vollenhoven suggest that South Africa should take cognisance of the legislative and judicial measures that have been taken in the United States and Canada to deal with the dilemmas posed by cyber bullying in schools.  Erica Serfontein explores the nexus between the right to life and education in laying a foundation for the development of learners’ talents and capabilities, advancing democracy, combating unfair discrimination and eradicating of poverty in view of the essential role that the law plays to uphold these rights to attain quality of life. Based on qualitative data, Willie van Vollenhoven contends that student-educators are not able to internalise or apply the right to freedom of expression in practice. He warns that our school system is failing to develop learners as critical thinkers in the marketplace of ideas. Elda de Waal and Erika Serfontein argue that the neither the State, nor parents or educators are able to independently guide learners to responsible adulthood – a collaborative effort in accordance with the democratic principles of cooperation is required. They caution against the reciprocal tendency of parents and schools to blame each other and encourage parents to participate accountably to address learner misconduct. At times educators are required to fulfil quasi-judicial roles as evidence leaders (prosecutors) when conducting disciplinary hearings of learners. Anthony Smith highlights the difficulties experiences by these “evidence leaders” and recommends the provision of specific training in this regard. It is notable that three contributions to this special issue on Education Law utilised education research methodology, which is grounded in social science paradigms, in conjunction with legal analysis, based on law research methodology.  This accentuates the interdisciplinary relationship between education and the law and promotes the epistemological enrichment of legal theory. Although the jurisprudence of the field of Education Law is fairly modest, the implications of court decisions on educational issues have a profound effect on the South African society, firstly because schools are microcosms of society, secondly because democratic (or undemocratic) practices in educational institutions leave indelible imprints on the youth that will eventually find expression in the life of a nation, and finally because the success (or failure) of an education system will ultimately determine the level of progress and economic destiny of the nation. Special Edition Editor Prof Marius Smit       

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

South African Animal Legislation and Marxist Philosophy of Law

Cultura ◽  
2019 ◽  
Vol 16 (1) ◽  
pp. 23-28
Author(s):  
Luis CORDEIRO-RODRIGUES
Keyword(s):  
South Africa ◽  
South African ◽  
Social Reality ◽  
Marxist Philosophy ◽  
Philosophy Of Law ◽  
Berlin Wall ◽  
Animal Farming ◽  
Animal Law ◽  
The Law ◽  
Farming Industry

Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.

scholarly journals The transition to general management in South Africa

2017 ◽  
Vol 15 (0) ◽  
Author(s):  
Stephen J. Mallaby ◽  
Gavin Price ◽  
Karl Hofmeyr
Keyword(s):  
South Africa ◽  
South African ◽  
Personal Characteristics ◽  
Structured Interviews ◽  
General Manager ◽  
General Management ◽  
General Managers ◽  
Managerial Implications ◽  
Effective Development ◽  
The Right

Orientation: Understanding the nature and challenges of making the transition from a functional role to a general management role in South African organisations.Research purpose: The objective of this study was to gain insight into the obstacles that affect the transition from functional to general management and identify steps that may be taken to overcome these challenges.Motivation for the study: One of the most difficult crossroads for a manager is making the shift from being a functional specialist to becoming a general manager. New competencies and behaviours are required, as well as a more strategic mind set. If the transition is not made successfully, the manager and the organisation suffer.Research design, approach and method: A qualitative design was used consisting of in-depth, semi-structured interviews, with 19 senior business leaders who had successfully made the transition. The interviews were used to gather insights into the challenges they faced during their transitions, and how these were overcome.Main findings: To make the transition successfully, functional managers need to gain relevant experience to prepare them for the broader scope of a general management role. They need to develop appropriate skills, attitudes and personal characteristics. Mentoring is an effective development process. Newly appointed general managers need to learn to let go of control while maintaining ownership, build relationships and strike the right balance between strategic thinking and execution. There are unique aspects of being a general manager in South Africa, such as dealing with Black Economic Empowerment and challenges of race and identity, given the country’s history.Practical and managerial implications: Specific interventions are suggested which are directed at both aspiring general managers and organisations seeking to assist middle managers to make the transition to general managers.Contribution: This study contributes to knowledge concerning the skills and attributes required by potential general managers, and the practical steps to be taken by South African organisations to facilitate the development of general managers. 

State, Myth, and Agency in the Construction of Chinese South African Identities, 1948–1994

2008 ◽  
Vol 4 (1) ◽  
pp. 69-90 ◽  
Author(s):  
Yoon Jung Park
Keyword(s):  
South Africa ◽  
South African ◽  
Social Acceptance ◽  
African State ◽  
Active Role ◽  
Fourth Generation ◽  
Chinese History ◽  
South Africans ◽  
Chinese Descent ◽  
Racial Ethnic

AbstractBased on the author's PhD research, this article focuses on the fluid and contested nature of the identities — racial, ethnic, and national — of people of Chinese descent in South Africa in the apartheid and post-apartheid eras. The research focuses on the approximately 12,000-strong community of second-, third-, and fourth-generation South African-born Chinese South Africans. It reveals that Chinese South Africans played an active role in identity construction using Chinese history, myths and culture, albeit within the constraints established by apartheid. During the latter part of apartheid, movement up the socio-economic ladder and gradual social acceptance by white South Africa propelled them into nebulous, interstitial spaces; officially they remained “non-white” but increasingly they were viewed as “honorary whites.” During the late 1970s and 1980s, the South African state attempted to redefine Chinese as “white” but these attempts failed because Chinese South Africans were unwilling to sacrifice their unique ethnic identity, which helped them to survive the more dehumanizing aspects of life under apartheid.

Risk management factors contributing to transgressions in the procurement practices in South African SOEs

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Lindani Myeza ◽  
Naledi Nkhi ◽  
Warren Maroun
Keyword(s):  
South Africa ◽  
Risk Management ◽  
Public Sector ◽  
South African ◽  
Public Procurement ◽  
African State ◽  
Political Influence ◽  
Structured Interviews ◽  
Content Type ◽  
Executive Level

PurposeThe study aims to deepen the understanding of why risk management principles are circumvented, thereby contributing to transgressions in public procurement for South African state-owned enterprises (SOEs). A deeper understanding of why risk management principles are circumvented is especially important in South Africa, given the high social, economic and environmental risks to which national and major SOEs are exposed in the procurement process.Design/methodology/approachThe study uses a qualitative design, based on detailed semi-structured interviews with 19 participants comprising management advisors, forensic investigators and auditors to explore why risk management principles are circumvented by South Africa SOEs.FindingsThe results of the study indicate that the tone that is set at political and executive level plays an important role in determining compliance with risk management principles by lower-level staff. Intense levels of political influence at SOEs are the main reason behind risk management systems being undermined.Originality/valueThe current study is one of the first explorations of why transgressions in public procurement continue to be evident despite risk management reforms being adopted by South Africa public sector. The research responds to the call for more studies on why reforms in South Africa public sector are not reducing transgression in public procurement. The study provides primary evidence on the importance of political and executive leadership in influencing the effectiveness of risk management reforms in the public sector.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals SOCIAL MEDIA AND THE ACTIO INJURIARIUM IN SOUTH AFRICA – AN EXPLORATION OF NEW CHALLENGES IN THE ONLINE ERA

Obiter ◽  
2014 ◽  
Author(s):  
Priya P Singh
Keyword(s):  
South Africa ◽  
Social Media ◽  
South African ◽  
News Media ◽  
Rapid Rise ◽  
New Challenges ◽  
The Law ◽  
Use Of Social Media ◽  
Alternative Remedies

The rapid rise in the use of social media networking sites in South Africa has posed new challenges to our courts. The law of defamation and privacy, which has long been considered well established, is now facing new demands on its boundaries because of the unique characteristics of social media in the online era.This note will discuss and critique three recent cases individually, concerning issues arising from the use of Facebook (a social media website) and the approach of the courts in extending the traditional law to the new demands of social media interaction.The aim of the note is to evaluate: the considerations which should apply to the granting of an interdict in respect of comments posted on Facebook, especially where alternative remedies are available; whether social media should be treated differently from electronic news media; how to establish ownership of a Facebook profile where such ownership is disputed; liability for anonymous defamatory posts on an individual’s Facebook profile; whether an individual can be liable for defamatory posts not made by himself personally, but in which he has been tagged; whether comments posed as questions can be regarded as defamatory; and the role played by apologies in claims for damages in defamation.The note concludes by discussing how South African courts have extended the traditional principles governing the actio injuriarium action in South African law – to the new challenges posed by the rise in popularity of social media networking sites.

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