Stellenbosch Law Review最新文献

{"title":"Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]","authors":"E. Marais","doi":"10.47348/slr/2021/i2a2","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a2","url":null,"abstract":"In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125331950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The legal impunity for gender-based violence against intersex, transgender, and gender diverse persons in Kenya: A legal recognition issue for the African human rights system","authors":"Milka Wahu Kuria, Shelmith Gatwiri Maranya","doi":"10.47348/slr/2022/i1a5","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a5","url":null,"abstract":"In 2019, a judge of the Supreme Court of Kenya issued a public apology to an intersex person for a decision the court handed down in 2010. The judge regretted the court’s failure to appreciate the identity and human rights needs of intersex persons in that case. R.M. had petitioned the High Court for redress due to the sexual, psychological, and emotional abuse he had suffered while detained at the state correctional facilities. This case highlighted the various forms of violence that intersex, transgender, and gender diverse persons (“ITGDPs”) experience on account of their gender identity. Studies reveal that gender-based violence against ITGDPs in Kenya is intricately conjoined with a lack of socio-cultural and legal recognition of their gender identities. The exclusion engenders pervasive violence by state actors and private individuals. Despite the growing use of public interest litigation (“PIL”) as a mechanism for pursuing the goals of legal recognition and social, economic, and political emancipation of ITGDPs in Kenya, there is scant improvement in policy and practice. The same lacuna obtains in the African human rights mechanisms. The apology, the research findings and the unyielding PIL create the appropriate occasion for a critical examination of the effects of the assumption on synonymy and binarism of gender and sex espoused by the national and the African human rights system, on sexual and gender-based violence (“GBV”) against ITGDPs in Kenya. This article analyses the nexus and how a lack of legal recognition of ITGDP gender identities and expression aggravates sexual and GBV against the group against the backdrop of the African human rights system.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128284157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women","authors":"Kennedy Kariseb","doi":"10.47348/slr/2022/i1a2","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a2","url":null,"abstract":"By using the mechanism of the Special Rapporteur on the Rights of Women in Africa (SRRWA) as a matrix, this article assesses the responsivity of the mechanism of the SRRWA in combating violence against women (“VAW”). The article argues that the mechanism of the SRRWA has taken up the challenge of contributing, in a substantive manner, to norms development relating to VAW. It finds that although VAW is not an explicit thematic area in the mandate of the SRRWA, compared to the United Nations Human Rights Council’s special rapporteur on violence against women, its causes and consequences, in practice it features quite distinctly in the work of the mechanism. This is indicative of the modest focus, response and contribution of the mechanism to this intractable human rights issue.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128210722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA","authors":"R. Eksteen","doi":"10.47348/slr/2021/i2a8","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a8","url":null,"abstract":"The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133399901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Blood is Thicker Than Water, but is It Thicker Than Ink? An Analysis of Parenthood and Sperm Donor Agreements in the Wake of QG V CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021)","authors":"B. Shozi, Roasia Hazarilall, D. Thaldar","doi":"10.47348/slr/2022/i3a9","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a9","url":null,"abstract":"The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-conceived child. However, if a sperm donor or his family members bring an application in terms of section 23 or 24, they cannot rely on their genetic link with the donor-conceived child. Secondly, sperm donor agreements are in principle legal and enforceable, but the court is not bound to enforce provisions dealing with parental responsibilities and rights if it is of the opinion that such provisions are not in the best interests of the child. A sperm donor agreement may, however, be informative regarding the parties’ intentions. Criticism is expressed about the way in which the court dealt with the issues of the locus standi of donors and the psychological evaluation of donors and recepients where known donors are used.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"282 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133269630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lessons From New South Wales, Queensland, and British Columbia to Assist South Africa in Adequately Regulating the Keeping of Assistance Animals by Disabled Persons in Sectional Title Schemes","authors":"CG van der Merwe","doi":"10.47348/slr/2022/i3a4","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a4","url":null,"abstract":"South African legislation contains only one subrule in the Sectional Titles Schemes Management Regulations about the keeping of assistance animals in sectional title schemes. This subrule provides that an owner or occupier suffering from a disability who reasonably requires a guide, hearing, or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property. I submit that this subrule falls hopelessly short of regulating this matter adequately and that lessons in this regard can be learned from the comparable Australian jurisdictions of New South Wales and Queensland, and the Canadian jurisdiction of British Columbia. First, this subrule makes no reference to anti-discrimination legislation or legislation dealing with the keeping of dogs which is found in the comparable provisions in the selected jurisdictions. Second, no clear distinction is drawn between service dogs and assistance dogs. It appears that assistance dogs are equated with service dogs which are trained to cater for a specific disability in a disabled person while those suffering from illnesses like depression could also benefit from the mere presence of a dog without any specific training. Third, the rule applies only to assistance dogs while the United States, for example, also provides for miniature horses and Capuchin monkeys to assist persons with disabilities. Fourth, save for guide and hearing dogs, inadequate provision is made for the training of other types of assistance animals. In some cases, disabled persons are allowed to train their own assistance animals without the animal and the disabled person having to comply with strict competency tests, for example, the “public access test” required in Queensland. Finally, there is no agreement regarding what type of disability would qualify for assistance by an assistance animal or what evidence a disabled owner or occupier must provide as proof that he or she reasonably requires an assistance animal.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124745343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya","authors":"Faith Kabata","doi":"10.47348/slr/2022/i1a7","DOIUrl":"https://doi.org/10.47348/slr/2022/i1a7","url":null,"abstract":"The main focus of the article is on the inadequacy of state responses in eliminating gender-based violence in its structural and direct expressions. The article departs from the premise that gender, sexuality, and identity are cultural constructs and argues that culture and social constructs are dynamic and changing, hence state responses to eliminate gender-based violence must engage the positive and egalitarian aspects of African culture for social legitimacy. While acknowledging that constitutional and legal frameworks lay a normative foundational basis for protection against gender-based violence, the effectiveness of these frameworks must be measured through implementation. It is in the implementation of the constitutional and legal norms that cultural contestations emerge, for instance, in the context of structural forms of gender-based violence such as female genital mutilation and marital rape. The main question that the article seeks to answer is how states can bridge the gap between norms and implementation which arises out of cultural contestations. Focusing on Kenya as a case study, the article examines state responses to structural forms of gender-based violence, specifically, female genital mutilation and marital rape. The Kenyan constitutional framework recognises culture as the foundation of the nation and the right to culture in the Bill of Rights, and on equal footing embraces egalitarian principles which place dignity, freedom, and equality at the core of societal relations. Applying doctrinal research methodology, we analyse case law on female genital mutilation and legislative initiatives in the prohibition of marital rape to identify and distil the judicial and legislative approaches on the interplay between the prohibition of gender-based violence norms and culture. Based on this, the article suggests proposals on how the progressive aspects of African culture that resonate with the egalitarian constitutional structure can be engaged in state responses to gender-based violence.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128065069","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Conduct of “Price Undertakings” and “Interim Reviews” in the Anti-Dumping Regime of South Africa [Discussion of Casar Drahtseilwerk Saar GMBH V International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]","authors":"Clive Vinti","doi":"10.47348/slr/2022/i3a11","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a11","url":null,"abstract":"The administration of anti-dumping investigations is the sole mandate of the International Trade Administration Commission (“ITAC”). This investigation has two stages, the preliminary and final investigation stages, which are accompanied by investigation reports at each stage. The investigation can be terminated or suspended after the preliminary investigation if the offending exporter ceases exports to the Southern African Customs Union (“SACU”) at the dumped prices or revises its prices such that ITAC is satisfied that injurious dumping has been eliminated. Twelve months after the publication of the final determination in the original investigation or the previous review, interested parties can request an interim review of the duty if there are significantly changed circumstances. It is these two aspects of dumping investigations that were the subject of litigation for the first time in South African law in Casar Drahtseilwerk Saar GMBH v International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020). This note assesses the novel approach employed by the court in readily construing these aspects of the anti-dumping investigation in South Africa in accordance with the jurisprudence on the Anti-Dumping Agreement. This approach is commendable in light of the ambivalent attitude of South African courts towards the country’s obligations in terms of the multilateral agreements of the World Trade Organization, despite the promulgation of local legislation to comply with these obligations and the constitutional injunction to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"927 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133251237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}