A Reply to Camilla Pickles' “Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests”

Camilla Pickles’ Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (Pregnancy Law) aims at providing a less adversarial angle related to the pregnant woman and the unborn within her, by moving away from the pregnant woman as a single entity (including the unborn within her) as well as from viewing the pregnant woman and the unborn within her as two separate entities of distinctive value and separate needs. This applies to four categories addressed by Pregnancy Law, namely foetal personhood, violence against pregnant women that terminates pregnancies, substance abuse during pregnancy, and termination of pregnancy for especially the South African context. Pregnancy Law positions its argument on a relational model that emphasises the context of pregnancy as signifying a connection between the pregnant woman (with rights) and the unborn (with interests) inside of her, the unborn being fully dependent on the pregnant woman’s body. This in turn is blended with what is referred to as a not-one/not-two approach. Bearing this in mind, Pregnancy Law claims to provide a compromise, middle ground and third approach regarding what is perceived to be the extremes of the single-entity and separate-entities approaches. Bearing this in mind, this article comprises a critical appraisal directed at Pregnancy Law’s claims as alluded to in the above with specific focus on the status of the unborn against the background of abortion (which in turn has implications for matters related to foetal personhood, violence against pregnant women that terminates pregnancies and substance abuse during pregnancy).

Lessons from UNCITRAL for Reforming the South African Legal Framework Concerning Security Rights in Movable Property

This article analyses the South African legal framework governing security rights in movable property with the view to inspire law reform. The analysis is based on a comparison of the current South African framework with the UNCITRAL Legislative Guide on Secured Transactions, a soft-law instrument containing international best practice. The problematic aspects of the South African framework benchmarked against the UNCITRAL Guide are: (1) not having a common legal framework that equally applies to all types of (including quasi-) real security transactions; (2) the scope of the current framework not being comprehensive (inclusive) enough; (3) not having an efficient enough method of creating the security right; (4) the current publicity method, particularly concerning special notarial bonds, being overly cumbersome and not providing effective public notice to third parties; and (5) the current enforcement measures potentially not being the most efficient. Regarding each of these problem areas, the article makes proposals on how the South African legislature could reform the current framework into one that is legally efficient and in step with international best practice.

Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

Revisiting the Zimbabwean Unfair Labour Practice Concept

The 2013 Constitution of Zimbabwe entrenches the broad right to fair labour practices. The right is given effect to in Part III of the Labour Act (Chapter 28:01), which provides an exhaustive list of unfair labour practices which can be committed by employers, trade unions, workers' committees, and other persons. The Labour Act predates the 2013 Constitution. The constitutionalisation of the right to fair labour practices necessarily carries with it the attendant difficulties of reconciling the new rights and the pre-existing regulatory framework. This article seeks to contribute towards a practical understanding of the Zimbabwean unfair labour practice concept in the light of the constitutionalisation of the right to fair labour practices. It explores the nature and scope of the concept of unfair labour practice and examines its relationship with the constitutional right. Further, the contribution critiques the formalistic and conservative approach adopted by the Constitutional Court in explaining this relationship. The article commences with a brief discussion of the origins of the concept and its reception in Zimbabwean labour law. Following from this, the contribution critically analyses the unfair labour practice concept from statutory and constitutional perspectives. It argues for an expanded paradigm of the concept. This can be achieved if the judiciary moves away from pedantic approaches to the interpretation of labour rights. Therefore, the clarion call is for a purposive and expansive interpretation of the right to fair labour practices, which promotes constitutionalism. In addition, the contribution calls upon the legislature to reconsider the viability of the exhaustive list of unfair labour practices in Part III of the Labour Act, given the constitutionalisation of the broad right to fair labour practices.

Throwing the Unlawful Detention Jurisprudence into Turmoil: A Critique of De Klerk V Minister of Police 2020 1 SACR 1 (CC)

Before the judgement in De Klerk v Minister of Police 2020 1 SACR 1 (CC), (de Klerk), a plaintiff could claim damages for unlawful arrest and detention after the first appearance in court if the arresting (or the investigating) officer had conducted himself unlawfully in addition to the unlawful arrest. The conduct of the arresting (or investigating) officer had to be such that it influenced the prosecution and/or the court to deny the plaintiff bail. In De Klerk the majority of the Constitutional Court (CC), after assuming that factual causation had been proven, held the Minister of Police (Minister) liable for the unlawful arrest and detention of the plaintiff (including detention after the plaintiff had appeared in court). This was despite the CC’s having found that the conduct of the arresting officer after the appearance of the plaintiff in court had been lawful. The CC held that the arresting officer foresaw that by not releasing the plaintiff, the plaintiff would be remanded in detention – the unlawful conduct. The arresting officer was aware that the practice in the court where the plaintiff appeared was to remand all first appearance cases without considering the accused for release on bail. This note contends that the CC's decision does not bear scrutiny. The flaw in the CC's decision arose from its assumption that factual causation had been proven in this case. This faulty approach flowed from the CC's unconventional application of the "but-for" test. Instead of substituting the defendant's actual conduct for the hypothetical reasonable conduct, the CC held that it was the defendant's conduct per se that had caused the plaintiff harm. On this application of the "but-for" test, an arresting officer is unlikely to escape liability for an unlawful arrest and detention even if his or her conduct ceases to be unlawful at one stage or another. The Minister was held liable for the blameworthy conduct of the arresting officer up to the time of the plaintiff's appearance in court. The arresting officer played no role whatsoever after the appearance of the plaintiff in court. It is therefore absurd to hold that her conduct was the factual cause of the damage the plaintiff suffered. Ordinarily the Minister would not be held liable for detention after the court appearance. There was nothing extraordinary in the De Klerk case warranting the Minister’s being held delictually liable for the post-court-appearance detention. The plaintiff failed to prove that it was the conduct of the arresting officer that caused the plaintiff damage post the court appearance.

South Africa's Journey to Climate Change Regulation: Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP)

Concerns over climate change are increasingly reaching an urgent level. Many countries have begun focusing their efforts on mitigating its devastating impact. At the same time countries need to ensure their economic growth and development, thus calling for greater energy usage leading to increased greenhouse gas emissions. As the environment struggles to adapt to the rapid changes brought about by climate change, the effects are felt by the most vulnerable of the world's population. Reports from the Intergovernmental Panel on Climate Change have outlined the reasons and the effects of climate change providing actions required to mitigate these effects. Unfortunately developing countries, including South Africa, are the most affected. The current energy system in the country is primarily based on fossil fuels, which emit the greatest amount of greenhouse gases. To ensure that South Africa mitigates the impact, government needs to safeguard and promote sustainable development. To do this South Africa should weigh its energy mix in relation to the environment and the wellbeing of its citizens. A comprehensive and robust regulatory framework on climate change is required thus ensuring the achievement of South Africa's developmental goals well into the future and ensuring participation in the global effort against climate change. Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP) signifies a good start towards the effective regulation of climate change in South Africa.

The Employee's Right to Freedom of Religion versus the Employer's Workplace Needs: An Ongoing Battle: TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)

The right to religion is well protected in the Constitution of the Republic of South Africa, 1996 (the Constitution) as well as attendant legislation. Section 15(1) of the Constitution provides that all persons have the right to freedom of religion. Section 31(1) of the Constitution then goes on to state that persons who belong to a religious community, amongst others, may not be denied the right to practise their religion with other members of that community. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against any person directly or indirectly on several grounds, which include the ground of religion. Section 9(4) of the Constitution on the other hand prohibits any person from unfairly discriminating against any other person on the ground of religion, amongst others. These constitutional protections resonate in both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. Despite these protections, the right to freedom of religion is still a contested subject in the workplace, inter alia. The contestation intensifies when the right to freedom of religion results in an employee not being able to comply with one or more of the employer's workplace needs. Employers' who do not understand the balance that has to be struck between the employee's right to freedom of religion and its workplace needs will often find themselves on the wrong side of our labour laws if they dismiss an employee without having due regard to the employee's religion. This is what transpired in TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC).

Shareholder Oppression as Corporate Conduct Repugnant to Public Policy: Infusing the Concept of Ubuntu in the Interpretation of Section 163 of the Companies Act 71 of 2008

The concept of ubuntu continues to exert considerable influence on the development and the general application of post-independence jurisprudence in South Africa. While ubuntu undoubtedly permeates the interpretation of a plethora of contemporary legal disciplines in South Africa, this article contends that the reception of the concept in corporate law remains constrained. Identifying shareholder relationships as an important feature of the corporate firm, the author presents a persuasive case for the infusion of ubuntu and its underlying equity considerations in the interpretation of the oppression remedy which is currently provided under section 163 of the Companies Act 71 of 2008. The article discusses the remedy from different legal perspectives which find synchrony in the concept of ubuntu. The contribution adds to emerging legal scholarship advocating the alignment of South African corporate law with constitutional principles.

Accountability of Law Enforcement Personnel for Human Rights Violations in Cameroon: Trends and Challenges

Law enforcement personnel are critically important in both the security and criminal justice sectors. Unlike ordinary citizens, they possess the broad powers needed to perform the tasks in these sectors: for example, they possess the power to arrest and detain; to search premises and seize items; to interrogate individuals; to stop assemblies; to check and even to restrict the movements of people during certain times; and to use force and firearms in specific circumstances. In exercising such powers, they are required to act independently and judiciously. Also, they must stay within the remit of the law. Such powers, however, render them prone to committing human rights abuses since by their very nature, they interfere with the civil and political rights of individuals. In instances of violations they are expected to be held accountable. Accountability for law enforcement for human rights violations evokes and entails the notions of lawfulness and legitimacy. As legitimacy touches on the public perception of law enforcement personnel, it becomes vital to explore what mechanisms are put in place to ensure accountability as well as possible challenges that hamper it. Examining the notion of the accountability of law enforcement personnel in the context of Cameroon, this paper argues that selective accountability has been the trend which puts the country at quite a distance from its international human rights obligations. Informed by empirical evidence from credible governmental bodies, the paper identifies and assesses the legal framework on accountability, touching on a few instances of selective accountability, and argues that if lawfulness and legitimacy are to be the cornerstones of accountability, then a comprehensive approach must be considered, including the de-politicisation of law enforcement units in Cameroon.

Key Considerations for Traditional Residential Universities Intending to Offer Bachelor of Laws (LLB) through the Distance Mode of Tuition: A Case Study

This case study aims to provide key considerations that traditional residential universities should consider when deciding to offer a distance tuition programme alongside an existing contact tuition programme. The University of the Free State is the only residential university to offer the Bachelor of Laws through both contact and distance modes of tuition. Therefore, an evaluation of this programme serves as an ideal case study to extract specific and essential considerations that other institutions, faculties or departments may use when deciding to offer a distance tuition programme in addition to its contact programme. The case study suggests that it is not feasible to merely duplicate an existing contact tuition programme and present it as a distance programme. A distinct pedagogical approach must be followed. It entails training, redesign of material, and rethinking assessment policies. Faculties should weigh the potential benefits of presenting a distance LLB against the labour-intensive nature of distance tuition and its probable limited success in realising broader access and student success. The funding model for distance tuition remains problematic and is financially unfeasible and unsustainable for many higher education institutions. Rethinking the funding model will be one step closer to achieving the objectives set out in the distance tuition policy framework.