South African law journal最新文献

{"title":"CORRESPONDENCE: Cricket pitches on the Rondebosch Common","authors":"Joel Krige","doi":"10.47348/salj/v139/i2a11","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a11","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822828","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":"Book Notice: Anél du Plessis (ed) Environmental Law and Local Government in South Africa 2 ed (2021)","authors":"T. Chigwata","doi":"10.47348/salj/v139/i4a10","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822917","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":"Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system","authors":"Karin Calitz","doi":"10.47348/salj/v139/i4a8","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a8","url":null,"abstract":"Despite extensive protection for employees against sexual harassment in the workplace, South African workplaces are still riddled with this harmful conduct. The severe consequences for victims and workplaces necessitate an analysis of the development of South African law to establish its successes, but also the shortcomings that continue to exist. Although there is a matrix of laws protecting employees against sexual harassment, the Employment Equity Act 55 of 1998, which regards harassment as a form of discrimination, is still the primary statute. In this article I argue that the tendency to focus on sexual harassment as a dignity and equality issue does not take sufficient cognisance of sexual harassment as a multifaceted issue involving criminal conduct, which threatens employees’ employment security and impacts on employees’ health and safety. An analysis of case law indicates that many employers have not adopted a policy on sexual harassment, and that some employers and the Commission for Conciliation, Mediation and Arbitration commissioners do not deal with sexual harassment in a gender-sensitive way, which is an approach endorsed by the International Labour Organization’s Violence and Harassment Convention 190 of 2019. This Convention emphasises the need for an inclusive, integrated approach to combat harassment. To align the protection of victims of harassment with the Convention, South Africa adopted a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in 2022. This Code, dealing with different kinds of harassment, including sexual harassment, replaced the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. By comparing the 2005 Code and related jurisprudence to the 2022 Code, the article considers whether sexual harassment is likely to be addressed more effectively under the 2022 Code. The 2022 Code has made certain improvements to the 2005 Code, but the altered definition of sexual harassment indicates the difficulties created by adopting one code to cover both misconduct and discrimination. In addition, aspects of the Convention, such as protecting the health and safety of employees, are not dealt with effectively in the 2022 Code. A separate code should be issued in terms of the Occupational Health and Safety Act to address the psychosocial safety of employees and the compensation of victims in terms of the Compensation for Injuries and Diseases Act 130 of 1993.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823385","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":"Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala","authors":"Rorisang Matlala","doi":"10.47348/salj/v139/i2a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a2","url":null,"abstract":"In S v Tshabalala, the Constitutional Court considered an appeal about whether accused persons who were present at a rape scene, but who did not participate in the crime and who neither aided nor abetted the perpetrators, could be found guilty of rape. The court decided this question in the affirmative by developing the commonlaw doctrine of common purpose and extending its application to rape cases. The court said that it did so to remove obstacles caused by patriarchal elements of the common law found in criminal law. The most interesting aspect of the judgment is that the court used feminism as a starting point for understanding the plight of women in rape cases. It affirmed its solidarity with women facing sexual violence and introduced feminist legal theory as a viable jurisprudential consideration in the adjudication of sexual crimes. This note considers the judgment and its implications for South Africa.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822850","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":"Notes: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?","authors":"Brendan Lyall Studti","doi":"10.47348/salj/v139/i3a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a2","url":null,"abstract":"Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823341","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":"‘I beg to differ’: Are our courts too agreeable?","authors":"Owen Rogers","doi":"10.47348/salj/v139/i2a4","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a4","url":null,"abstract":"If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822404","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":"‘Privacy by design’ in the EU General Data Protection Regulation: A new privacy standard or the Emperor’s new clothes?","authors":"D. Donnelly","doi":"10.47348/salj/v139/i3a4","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a4","url":null,"abstract":"Privacy by design (‘PbD’) is a conceptual framework that has been widely adopted as a helpful, practical framework for organisations to ‘translate’ legal data protection principles into concrete technical design and organisational policies. It can offer a harmonising framework for multiple, overlapping legal compliance obligations. Privacy is engineered directly into the design of new technologies, as a default setting, while still achieving full functionality. The article explains the seven foundational principles of the concept with detailed cross reference to the relevant conditions of lawful processing under the Protection of Personal Information Act 4 of 2013 (‘POPIA’), offering the first in-depth analysis of PbD in a South African context. PbD is now an express legal obligation in art 25 of the European Union’s General Data Protection Regulation (2016). The article sketches the background to that important development and provides an in-depth critique of the three key shortcomings of art 25. It recommends that instead of following the EU example, South Africa’s Information Regulator could promote the adoption of PbD through a guidance note and in approved codes of conduct. It concludes that a PbD approach is already (albeit only impliedly) required for compliance with the conditions of lawful processing under POPIA.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823265","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":"Book Review: Lawyers in Turmoil: The Johannesburg Conspiracy of 1895 (2020)","authors":"E. Fagan","doi":"10.47348/SALJ/V138/I1A9","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I1A9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"197-203"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821223","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":"Book Review: Sabino Cassese Advanced Introduction to Global Administrative Law (2021)","authors":"G. Caswell","doi":"10.47348/salj/v138/i3a10","DOIUrl":"https://doi.org/10.47348/salj/v138/i3a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821389","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":"Notes: Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni","authors":"Rehana Cassim","doi":"10.47348/SALJ/V138/I1A1","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I1A1","url":null,"abstract":"This note discusses and critically analyses the judgment in Organisation Undoing Tax Abuse v Myeni [2020] 3 All SA 578 (GP), in which the court declared a director delinquent for her lifetime in terms of s 162(5) of the Companies Act 71 of 2008. The basis of the application related to the director’s conduct while she was a nonexecutive director and chairperson of South African Airways SOC Ltd. The judgment is commendable for its strict stance against errant directors of state-owned companies. It is the first delinquency application brought by a party acting in the public interest, and the first judgment to impose a lifelong delinquency declaration on a director.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"1-19"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820597","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}