Potchefstroom Electronic Law Journal最新文献

{"title":"The The Problem of Trans-Border Information Flows in the Protection of Personal Information","authors":"Mthuthukisi Malahleka","doi":"10.17159/1727-3781/2024/v27i0a14296","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14296","url":null,"abstract":"Cross-border transfers of personal information have become an important integrant of international trade, global economic activities enabler and a component of digital services driver, however, they are faced with the limitations of cross-border personal information transfers and data localisation laws. Various methodologies are used to process and transfer personal information across the borders such as cloud computing. Cloud computing has grown to include more users across different countries through its transnational characteristics on cross-border personal information transfers and triggers the Protection of Personal Information Act 4 of 2013 (POPIA) application. POPIA seeks to promote and protect personal information when processed by public or private bodies. Personal information also forms part of privacy which is a fundamental right enshrined under section 14 of the Constitution of the Republic of South Africa, 1996. Therefore, the processing of personal information unlawfully across South Africa is a violation of the fundamental right to privacy and the POPIA. A comparative analysis of the provisions of the European Union (EU) General Data Protection Regulation (GDPR) on cross-border data transfers will be used to illustrate the shortcomings of section 72 of the POPIA in the cloud computing context. The GDPR has set a benchmark for international data protection standards and POPIA must comply with those standards if South Africa wants to maintain its status as part of the international information technology market.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"40 11","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141928359","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":"Through the Lens of the ICJ: Bridging the Gap between Human Rights and Humanitarian Norms in Global Child Soldiering","authors":"Nikita Govender","doi":"10.17159/1727-3781/2024/v27i0a16114","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16114","url":null,"abstract":"Recently in June 2022, the United Nations Special Representative of the Secretary-General for Children and Armed Conflict expressed that the ongoing use and recruitment of children in armed conflict globally warrants \"international concern\". Notwithstanding the existence of proscriptive norms in terms of international humanitarian law (IHL) and international human rights law (IHRL), international legal violations are nevertheless committed by states and non-state actors. A systematic analysis of the respective normative systems identifies a lacuna between specific provisions thereof. Consequently, violations are committed in armed conflicts for the purposes of IHRL but not IHL, it is contended that this inconsistency in the law perpetuates ongoing child soldiering. It is further contended that this inconsistency establishes a genus of children who are legally unprotected as they fall between the cracks of international law. \u0000Based on recent progressive jurisprudence of the International Court of Justice, an approach which will bridge the lacuna between these norms is proposed. Contrary to the view of the International Committee of the Red Cross and with due consideration for the lex specialis principle, it is proposed that the IHL and IHRL instruments should apply in a complementary fashion, as opposed to the separate legal regimes under which they have developed.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"31 17","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141270547","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 Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?","authors":"Fatima Osman","doi":"10.17159/1727-3781/2024/v27i0a17238","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17238","url":null,"abstract":"The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140999758","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":"Local Government Empowerment and Collaborative Approaches in the Electricity Sector: A Constitutional Analysis","authors":"Mnotho Ngcobo","doi":"10.17159/1727-3781/2024/v27i0a16855","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16855","url":null,"abstract":"This article explores the constitutional provisions and legislative aspects governing the role of local governments in generating and distributing electricity in South Africa. It encompasses the constitutional framework, which grants municipalities specific powers and responsibilities, highlighting the significance of these \"original powers\" derived directly from the Constitution. The article emphasises the need for intergovernmental cooperation at national, provincial, and local government levels to effectively address the complexities of electricity provision, taking into account related services such as water, sanitation, and environmental rights. The article further assesses recent amendments to the Electricity Regulation Act 4 of 2006, which grant municipalities greater involvement in electricity generation and procurement from independent power producers. While these amendments are seen as positive, the article highlights the need for financial resources and technical capacity building to empower municipalities to undertake these new responsibilities effectively. Ultimately, it emphasises the critical role of local governments in ensuring a sustainable and reliable supply of electricity for their communities while calling for comprehensive support from higher government levels to realise this goal.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"136 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141002799","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":"A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)","authors":"Estie Gresse, Werner Gresse","doi":"10.17159/1727-3781/2024/v27i0a14641","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14641","url":null,"abstract":"Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"100 11","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141017645","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":"Securities Markets and Their Regulation in Zambia: A New Dawn or a Rebranding of the Old Norms?","authors":"Chipasha Mulenga","doi":"10.17159/1727-3781/2024/v27i0a15427","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15427","url":null,"abstract":"Securities markets are a barometer for the economic progression of any country. The quest to harness the maximum benefits that such markets afford has led governments to enact specific legislation and develop appropriate policies. Despite enacting legislation in 1970, it was only in 1993 that the Zambian securities market was established. Simultaneously, the Securities Act 1993 was also enacted. However, it was replete with shortcomings, leading to its repeal and replacement by the Securities Act 2016 (amended by the Securities (Amendment) Act 21 of 2022; hereinafter the Securities Act 2016 as amended). The Securities Act 2016 as amended has for the most part been hailed as a progressive piece of legislation that has incorporated global best practices aimed at enhancing the securities market. There is optimism that the Securities Act 2016 as amended has breathed new life into the securities industry which was seemingly ailing and on life support. It remains questionable, however, whether the Securities Act 2016 as amended enhances the performance of the securities market by effectively fostering fair and efficient trading and ensuring financial integrity, or if it simply reiterates the problems of its predecessor or worse still creates new challenges.\u0000In this article the author critically assesses the Securities Act 2016 as amended to ascertain the extent to which it conforms to the IOSCO Principles 2017 and the practices of other countries such as Kenya, whose Capital Markets Act Chapter 485 offers greater clarity.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"2019 42","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140718042","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 Constitutional Case Against the Mandatory Vaccine Policy — An Interdisciplinary South African Perspective","authors":"Casper Lӧtter","doi":"10.17159/1727-3781/2024/v27i0a14109","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14109","url":null,"abstract":"In this article, I rethink the perceived/received wisdom of the mandatory vaccine policy which has been punted so ardently, largely uncritically, in South Africa. I investigate whether this line of argument could be justified from a comparative South African constitutional perspective. It became evident in the early stages of my research that the legal perspective is too narrow and constricting to allow for a proper understanding of the puzzle. Following Friedman's suggestion of the schism between Western-based curative medicine and preventive strategies, I employ a critical public health theoretical framework complemented by insights from the social sciences. Given that the vaccine is a product of an outdated paradigm, South Africa's erroneous approach to the pandemic led to disastrous consequences and fared less favourably than the rest of Africa. It is concluded that a mandatory vaccine policy is both unconstitutional and unjustifiable, in the wider view.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" 18","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140216336","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 Concept of Social Justice in Mine-Host Community Involvement and Benefit Accrual: Reflections from Mineral Extraction in Zimbabwe","authors":"Stanford Chagadama, Germarié Viljoen","doi":"10.17159/1727-3781/2024/v27i0a16617","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16617","url":null,"abstract":"Minerals play a vital role in societal and economic growth. As finite and non-renewable resources, minerals inevitably diminish upon extraction. Consequently, there is an expectation that the extraction process should involve and benefit the local communities hosting these resources. Despite expectations of benefitting local communities, mineral extraction often results in more economic, social, and environmental burdens than advantages for them. This contribution is centred on a theoretical inquiry, employing the concept of social justice to explore and mitigate the disparities in the distribution of costs and benefits experienced by mine-host communities. It aims to balance the inequities, emphasising the principles of distributive, procedural and remedial justice to reconcile the losses and gains in a fair and equitable manner","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"67 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140229750","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":"Interpreting the Right to Work and its Application in the South African Legal Framework","authors":"Kim-Leigh Loedolf","doi":"10.17159/1727-3781/2024/v27i0a13857","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a13857","url":null,"abstract":"The article discusses the right to work within the context of South Africa. South African law, at present, does not provide for a right to work as provided for by the International Covenant on Economic, Social and Cultural Rights (ICESCR). Implementing the right to work might address the high unemployment rate in South Africa and it is concerning that the right to work has not yet been considered as potential solution. The aim of the article is to interpret the right to work through the interpretive lens of the United Nations Committee on Economic, Social and Cultural Rights. The article discusses the obligations created by the ICESCR and the progress the government of South Africa has made to meet the state obligations relating to the right to work as provided by the ICESCR. The article concludes with a comprehensive definition of the right to work and suggests that the government of South Africa, adopt the right to work immediately as a means to avoid further hardship partially caused by the lack of a rights framework guaranteeing the right to work in South Africa.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140248248","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 Public Policy in King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021)","authors":"Rika Van Zyl","doi":"10.17159/1727-3781/2024/v27i0a15845","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15845","url":null,"abstract":"In King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021), the Constitutional Court considered whether a discriminatory out-and-out disinheritance clause in a private will could be declared unenforceable in terms of public policy. This opened private wills with disinheritance clauses to the scrutinising evaluation of public values despite freedom of testation. Although public policy has always been an elusive concept, South African public policy is infused with constitutional values to give more clarity on the content of public policy. In King a conflation emerged between constitutional rights, legislative violations and public policy values, however. The court grappled with the question of whether to apply the Constitution directly based on a violation in terms of section 9(4) or whether the section 8 of the Equality Act should be applied directly through the subsidiarity principle, or whether the discriminatory clause should be evaluated through the public policy lens. Where the conflicting values were weighed up there seem to be hints of subjective views to tip the scales in favour of one value over another. This is a concern when public policy is used to advance a subjective view of what the community values more, especially when it involves the disruption of the devolvement of a deceased's estate. This underlines the difficult application of public policy values, even in a constitutional democracy, when competing values are at play.","PeriodicalId":510405,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"25 9","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139890134","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}