Welcome to the Pretoria Student Law Review (PSLR) ISSN: 1998-0280 Frequency: 2 issues per year Journal Status: Active The Pretoria Student Law Review (PSLR) is a student-driven journal published by the Pretoria University Law Press (PULP) based at the Centre for Human Rights, University of Pretoria. The PSLR is a peer-reviewed journal and student-driven initiative that provides an interactive forum for students, academics, and legal professionals to discuss topical legal matters. The approach is experimental, investigative, and sometimes challenging – it is not conventional. South Africa, the African continent, and the world at large are on the cusp of a new era – socially, economically, and politically. With the uncertainties that the future holds, law students are at the duty to utilise the unique position that they are in to challenge the status quo. Students must not be complacent; they must strive for the enforcement of the rule of law. They are encouraged to ask questions, and demand answers. Students are also encouraged to be relentless in their search for truth and justice. The PSLR provides a forum for critical thinking, argument, and debate. The PSLR was founded in 2007 and its first publication was in February of 2008. Since then, the Journal has appeared twice a year without interruption.
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The Abolition of the Death Penalty John Lazaro v United Republic of Tanzania (Application 003/2016) (2023) AfCHPR 335 (7 November 2023)
On 7 November 2023, the African Court on Human and Peoples’ Rights (‘the Court’) handed down judgment in a matter concerning the death penalty as a method of punishment in which South African Judge, Dumisa Buhle Ntsebeza and Congolese Judge, Blaise Tchikaya, provided dissenting opinions. The dissenting opinions characterised the death penalty as being inhumane, degrading, and a direct violation of Articles 4 and 5 of the African Charter on Human and Peoples’ Rights (‘the Charter’). The Honourable Judges further provided that the death penalty should be abolished in the legislation of the United Republic of Tanzania and that all member states of the African Union should collectively take progressive steps towards its abolition. This case discussion advances the dissenting opinions of Ntsebeza J and Tchikaya J, and further advocates for the abolition of the death penalty. The broader objective of this case discussion is to categorise the abolition of the death penalty as customary international law, meaning that even if there is no explicit rule of international law on its prohibition, courts in their interpretation can advance its abolition by adopting a human rights perspective.
Decolonising Expropriation, Systems Theory & Radical Political Theory Through the Lens of Business Venture Investments 900 (PTY) LTD V City Of Ekurhuleni Metropolitan Municipality
The objectives of land reform, as per section 25 of the Constitution of the Republic of South Africa, 1996, are limited by conservative property conditions that maintain the status quo. As such, subjecting land expropriation to compensation is unjust and fortifies the brutality of apartheid and colonialism instead of addressing these historical injustices. This article argues that just and equitable nil compensation challenges the status quo. It will analyse Business Venture Investments 900 (Pty) Ltd v City of Ekurhuleni Metropolitan Municipality, to illustrate that just and equitable redress can be brought forth through a decolonial approach to nil compensation. It will then problematise Niklas Luhmann’s framework, contending that it perpetuates the status quo by undermining the role that positive law can play in correcting the injustices of the past. The article further asserts that the status quo is bolstered by positive law, such as South Africa’s Constitution, which helps keep marginalised groups landless.
State of Statelessness for Displaced Persons Through the Doctrine Of Ubuntu: South African Domestic Perspective and International Law Obligation Through the Lens Of Khoza V Minister of Home Affairs [2023] 2 ALL SA 489 (GP)
The notion of statelessness and the positioning of the South African government in protecting its territorial integrity have been attributed to preserving its financial capability to cater for its nationals while imposing administrative and financial constraints on those who come to its shores seeking asylum due to instability in their respective regions, often leaving them displaced and undocumented. Subsequently, the criteria for defining statelessness remain contested, making the state privy to act unreasonably unjust in certain circumstances. Consequently, the government implicitly foreshadows its privy policy by scrutinising such applications as a programme that aims to ensure that it does not have an excess of foreigners who may negatively affect service delivery and cause unwanted issues like crime. As a result, stateless people are perceived as interfering with the allocation of the national fiscus. The notion of statelessness will, however, be explored as this paper progresses through the case of Khoza v Minister of Home Affairs and Others by showing how a decolonised and transformative endeavour of ubuntu should be practised. As such, the idea of ubuntu will be affirmed through the international obligation of international human rights while simultaneously arguing that Africans have not become so assimilated as to regard other Africans as strangers, to such an extent that the systems in place today are based on national self-centred interests that hold Western influence. This influence, as the paper unfolds, will prove that stateless persons in South Africa tend to be subversively (implicitly) discriminated against when they apply for nationality. Therefore, a xenophobic stance from an institution such as the Department of Home Affairs gains enormous adherence when it processes applications, especially for Africans.
Regulating Automated Decision-Making: An Analysis of Section 71 of POPIA and Its Implications For Privacy and Data Protection
The rapid evolution of technology and its integration into various sectors of society has necessitated comprehensive data protection legislation to safeguard individuals’ privacy rights. This paper conducts a comparative analysis between the Protection of Personal Information Act (POPIA) of South Africa and the General Data Protection Regulation (GDPR) of the European Union, focusing particularly on their regulatory frameworks concerning automated decision-making and its implications for privacy and data protection. POPIA, enacted in 2013 after seven years of development, seeks to regulate the processing of personal information within South Africa, aligning with international data protection standards. However, with the emergence of automated decision-making systems powered by artificial intelligence and machine learning algorithms, concerns arise regarding privacy, transparency, and accountability. This paper explores how POPIA’s principles, including accountability and data processing conditions, address these challenges, while also acknowledging potential gaps. Drawing parallels with the GDPR — recognised as the international benchmark for data protection — reveals areas where POPIA could enhance its regulatory approach. The GDPR’s emphasis on transparency, explicit consent, and the right to explanation in ADM processes provides valuable insights for POPIA’s refinement. Furthermore, the GDPR’s provisions for regulatory strategies, codes of conduct, and remedies offer potential avenues for strengthening POPIA’s enforcement mechanisms. By evaluating the foundational concepts and core values of both legislations, this paper offers recommendations for aligning POPIA more closely with GDPR best practices, particularly in the context of ADM. It underscores the importance of continuous adaptation and international collaboration in addressing the evolving challenges of data protection in the digital age.
Incorporating the incorporeal: The potential classification of Bitcoin as a ‘thing’ under South African common law
This article aims to determine whether Bitcoin could be classified as a ‘thing’ in the South African common law of things. The key motivation behind this article is to determine whether the Pandectist focus on the corporeality requirement in the classification of things is outdated in the modern, technologically driven era. Bitcoin, which is classified as a decentralised convertible virtual currency has been received positively in South Africa over the course of the last few years, as Bitcoin adoption has grown exponentially. South Africa has also seen the implementation of important regulatory reforms surrounding virtual currencies; primarily the recognition of virtual currency as a financial product and its traders as financial service providers. Given the positive reception of virtual currencies, particularly Bitcoin, in South Africa, this article explores the recognition of Bitcoin as a ‘thing’ in South Africa law, as well as the significance of this classification. From this evaluation, it will become clear that the incorporeal nature of Bitcoin poses a challenge to its common law recognition, albeit not an insurmountable one. In this regard, two arguments — the doctrinal argument and the exception argument — are proposed whereby Bitcoin could be recognised as a thing despite its incorporeality.
Do orders of law enforcement officials supersede the provisions of the Constitution and justify a command of ‘skop, skiet en donder’? Khosa & Others v Minister of Defence & Military Defence & Military Veterans & Others (21512/2020) [2020] ZAGPPHC 147
In Khosa and others v Minister of Defence, the High Court was tasked with assessing whether the use of force by Police and Military personnel was lawful and justifiable in enforcing the COVID-19 Lockdown Regulations. The Court declared that when executing Regulations developed to address the COVID-19 pandemic, law enforcement officers are bound by the Constitution, the law, and international law. Mr Collins Khosa was accused by members of the Police and South African National Defence Force (SANDF) of having violated the Lockdown Regulations. Consequently, Mr Khosa was assaulted in his home by military personnel assigned to enforce the COVID-19 Lockdown Regulations. Hours after the assault Mr Khosa succumbed to his injuries and died. The Court found that the use of force against Mr Khosa was unlawful and violated his fundamental constitutional rights. The court emphasised the significance of protecting constitutional rights, especially during times of a national state of disaster, and emphasised that the Police and Military forces must act within the bounds of the Constitution and respect the rights of all individuals. Additionally, the Court highlighted numerous inflammatory public comments made by the Minister of Defence that impacted the enforcement of the Regulations by law enforcement. The Court specified the measures that the Minister of Defence and Police had to implement to effectively investigate the assault on Mr Khosa and prevent further instances of abuse at the hands of Police and Military personnel enforcing the COVID-19 Lockdown Regulations.
‘Consent’ and confusion casting doubt on the validity of a customary marriage: Mgenge v Mokoena & another [2023] JOL 58107 (GJ)
In Mgenge v Mokoena & another [2023] JOL 58107 (GJ), the Gauteng High Court, Johannesburg, per Rome AJ, considered the validity of a customary marriage concluded between the bride (the first respondent) and the deceased groom with reference to the requirements outlined in section 3 of the Recognition of Customary Marriages Act 120 of 1998. The mother of the groom (the applicant) challenged the validity of the marriage certificate. The main issue under inspection is whether the applicant’s lack of participation in, consent to, or knowledge of the customary marriage is sufficient to rebut the prima facie proof of validity offered by the marriage certificate. In this contribution, I recount the Court’s systemic approach to determine if the applicant’s misunderstanding of the purpose or intention of the events that transpired and her absence in participating in the negotiations and entering into or celebration of the customary marriage invalidates the prima facie proof offered by the marriage certificate. I explore the Court’s approach to the requirements for a valid customary marriage, specifically the negotiation and celebration requirements, as well as the integration and physical handing over of the bride. I also briefly inspect the role of expert evidence and living customary law. This judgment demonstrates the dynamic and evolving nature of living customary law in South Africa and the approaches adopted by the judiciary when exploring customary law issues like the validity of a customary marriage.
The right to democratic participation in Africa in the era of deepfake
In theory, the right to democratic participation in Africa is safeguarded by an array of international and regional human rights instruments, such as article 13 of the African Charter on Human and Peoples’ Rights. In essence, the right entails the genuine freedom of people to participate in government and to vote freely, without coercion, intimidation, or deception. In recent times, there has been a growing concern about the impact of artificial intelligence (AI) on the enjoyment of human rights. Deepfake, a relatively new concept, is one of such AI-controversy. Recently, scholars have considered the impacts of deepfakes on different areas of law, such as intellectual property, torts and evidence. In human rights discourse, discussions on deepfake have focused particularly on the right to dignity and privacy. But in fact, the right to information is probably the human right most endangered by deepfake. This article seeks to underscore that there is a concerning impact on the right to democratic participation. First, the article shows the interdependence and interrelation between the right to democratic participation and the right information. Thereafter, it argues that the right to information makes sense only when seen as ‘the right to truth’. Further, it argues that deepfake interferes with the ‘freely’ component of the right to democratic participation in that it disturbs and distorts information necessary for the electorates to freely participate in government. The article notes the little response from African states despite the call from the African Commission to establish a framework for human rights in the use of AI and emphasises the importance of partnership with technology companies in addressing the problem. Other recommendations made include the need to educate the electorates on deepfakes and the formulation of law and policy compatible with the African Charter in addressing the problem.
Examining the legal attribution of transgender parenthood in England and Wales: R (Mcconnell) v Registrar General for England and Wales [2020] EWCA CIV 559
This note comments on the decision of the England and Wales Court of Appeal in R (on the application of McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559. Freddy McConnell was registered as female at birth but transitioned at age 22 to live as a male. Mr McConnell was issued a certificate on 11 April 2017, confirming his gender as male. On 21 April 2017, Mr McConnell commenced fertility treatment. Upon giving birth to a son, Mr McConnell sought to register the birth of his son with the Registry Office. In a decision in January 2019, he was informed that he would have to be registered as the child’s ‘mother’. In this judgement, the Court of Appeal rejected McConnell’s contention that he should be registered as either the ‘father’ or ‘gestational parent’ as a matter of domestic law. Secondarily, it also held that this interpretation was not incompatible with articles 8 and 14 of the European Convention on Human Rights.
The concept of good faith in the law of contract: Redefined and reimagined
In civil, and some common law, jurisdictions, good faith is recognised as a fundamental principle informing the law of contract and is often invoked by some law courts to set aside contracts found not to have been concluded in good faith. It is a counterpoise to the dominant idea of freedom of contract. Whilst it cannot be denied that the Constitution of the Republic of South Africa, 1996 has had a positive impact on the doctrine of good faith in South African jurisprudence, good faith still has a larger role to play to ensure justice and fairness whilst preventing commercial immorality. It is, therefore, against this backdrop that this paper will examine the role of good faith and fairness in South African contract law. it is found that the concept of good faith plays an important role in contract law as it can be a determining factor in the validity or invalidity of a contract. It is inextricably linked to the concept of fairness and has the effect of counteracting contracts that are unfair or unconscionable. The article further looks at the role of good faith in the contract law of foreign jurisdictions and sets out the lessons we can draw from these jurisdictions.
Respecting patient autonomy: Unfortunate verdict but sound precedent: Evans v United Kingdom app no 6339/05, (European Court of Human Rights, 10 April 2007)
Evans v United Kingdom saw the foundational medico-legal doctrine of informed consent come into conflict with women’s reproductive rights in the context of in-vitro fertilisation. In this matter, the appellant, Evans, appealed the Court of Appeal’s decision to sustain her erstwhile partner’s (Johnston) right to withdraw his consent to implant embryos they had fertilised together. These embryos were Evans’s last opportunity to have genetically related children. Evans submitted that the municipal courts had not adequately considered her position as a woman, and the judgment violated her article 8 and 14 rights under the European Convention of Human Rights. This case note analyses the majority and minority judgments of the European Court of Human Rights (ECHR). It finds that Evans’s and Johnston’s competing interests had to be weighed against each other, since the matter fell within the margin of appreciation awarded to the Grand Chamber of the ECHR. Evans’s rights under articles 8 and 14 were both due consideration, and it was appropriate to attribute significance to her interests as a woman. However, her rights had to be weighed against Johnston’s under article 8 and the importance of reinforcing the doctrine of informed consent. It is concluded that Evans’s interests could not legally outweigh the dangerous precedent that would have been set by finding in her favour. Therefore, although the verdict was unfortunate for Evans, it was correct for the Grand Chamber to rule in favour of the UK to set a sound precedent that protects patient autonomy in Europe.
An examination of the South African corporate law through the lens of ubuntu
This article submits that ubuntu is indubitably a constitutional value which informs the constitutional era. Constitutional supremacy mandates that all values and principles of the Constitution must be observed to avoid invalidation. As a result of this constitutional obligation, this article intends to examine the inclusion of ubuntu as a constitutional principle in South African corporate law. To achieve this objective, the article employs doctrinal legal research methodology, also known as the black letter law, which encompasses scrutiny of various relevant legal sources. This research methodology is selected due to its ability to address the question of what the law is. In this case, the article intends to determine the position of ubuntu as a constitutional principle in the context of the South African corporate law. The conclusion reached is that the South African corporate law contains significant traces of the ontological elements of ubuntu. This is reinforced by the clear correlation between the values of ubuntu and corporate law principles. Accordingly, several South African corporate law concepts seem to correlate with the principles of ubuntu. A number of examples are expounded upon. Nonetheless, there is still no express inclusion of ubuntu in corporate law.
The regulation of initial Coin Offerings: A comparison of the South African Intergovernmental Fintech Working Group Position Paper and the European Union European Securities and Markets Authority Advice on Initial Coin Offerings and crypto assets
The advent of crypto assets has led to creative alternative ways of raising capital for emerging businesses through token sales, aptly termed Initial Coin Offerings or ICOs. The crypto asset market has experienced a period of high market growth in the past decade due to ICOs — a relatively new phenomenon in the financial markets — which has seen investors invest their hard-earned capital despite the information asymmetry and associated risks. The lack of regulation in ICOs and crypto assets, in general, has prompted regulators to take steps towards regulation. This submission explores how South Africa proposes to regulate ICOs and provides a comparison with the European Union’s approach towards regulating ICOs by paying specific attention to the governmental papers published in the respective jurisdictions.
Analysing the Kenya film and classification board’s discretion to ban and its impact on the realisation of digital rights and digital inclusion in Kenya
This article critically examines the scope of discretion vested in the Kenya Film Classification Board (KFCB) under the Film and Stage Plays Act in regulating films and stage productions in Kenya. Specifically, the paper questions the absence of a clear standard or test for the determination of what constitutes ‘decency’ or ‘public interest’ in the KFCB’s approval or disapproval of films and posters for public exhibition. Furthermore, the paper evaluates the compatibility of this discretionary power with the constitutional guarantee of artistic freedom of expression under Article 33 of the Kenyan Constitution. Finally, the paper explores the potential impact of KFCB’s discretion on digital rights and digital inclusion in Kenya. By interrogating these issues, this paper seeks to contribute to the ongoing debates on the appropriate balance between regulation and protection of artistic expression, on the one hand, and the realisation of digital rights and digital inclusion, on the other.
The Limitations and Opportunities of Child Participation in Climate Change Litigation in Africa
Climate change legal frameworks call upon countries to mitigate and adapt to the adverse effects of climate change. These frameworks have influenced the creation of policies and laws addressing climate change across the globe. Activists, individuals, and civil society organisations have utilised campaigns, demonstrations, and climate change litigation to compel countries to adhere to their climate change obligations provided in these frameworks. However, climate change litigation is still in its infancy and progressing slowly in African countries. Additionally, children’s involvement in such litigation is limited despite international and domestic legal frameworks permitting their participation. This article argues that children’s participation in climate change litigation in African countries is currently tokenistic and does not afford them meaningful involvement in the decision-making processes in climate change matters. Having presented the importance of child participation, it examines the opportunities and limitations of children’s participation in climate change litigation.
AN EXPLORATION OF JUSTICE: IDEAL AND NONIDEAL THEORY PERSPECTIVES ON THE CONSTITUTION
This article explores and analyses the concept of justice in postapartheid South Africa and whether the 1996 Constitution of the Republic of South Africa is just. This is done through critical analysis and juxtaposition of the varieties of justice presented by constitutional optimists and constitutional abolitionists. The paper will show how the principles of Ideal Theory and Non-Ideal Theory feature in the political narratives of the constitutional optimists and abolitionists, respectively. Further, this paper allows for introspection surrounding the conception of justice and how justice is realised in society. Finally, it will be argued that the conception of justice that manifests in society is subjective to the interests of the agents that hold the economic means to influence political power.
Copyright (c) 2023 The Pretoria Student Law Review
MOVING BEYOND THE ABYSSAL LINE: THE POSSIBILITY OF EPISTEMIC JUSTICE IN THE ‘POST’- APARTHEID CONSTITUTIONALISM
In this article, I reflect on the idea of a ‘post’-apartheid South African constitutionalism and the related and implicated notion of Transformative Constitutionalism by emphasising its continued bondage to a colonial and apartheid past. In an effort to critically explore the ‘post’-apartheid transformative constitutional framework, I examine the endurance of colonialism as coloniality in the manner it has unfolded in the South African context. This exploration involves highlighting three constitutive elements of this endurance: linear historicism as observed in Hobbes’ social contract; the geography of reason as theorised by Schmitt; and the lines within South African society and knowledge systems as a result of what De Sousa Santos calls ‘abyssal thinking’. Although the endurance of historical colonialism as coloniality can be described in a number of ways, I deal with these specific constitutive elements in order to argue that the doctrine of transformation, which includes Transformative Constitutionalism, has largely been ineffective in its attempt to eradicate coloniality as it has failed to achieve epistemic justice for the majority of (South) Africans. I conclude by suggesting that the doctrine of transformation and, as such, Transformative Constitutionalism has served to further exclude and marginalise the knowledge of indigenous (South) African people in the ‘post’-apartheid constitutional dispensation. The project of transformation has sustained the abyssal line as it has been internalised through coloniality. As such, the ‘post’-apartheid South African dispensation remains divided by this line — essentially discarding indigenous (South) African people and their knowledge systems to the abyss. I further argue that the persistence of coloniality, sustained by the abyssal line, requires a project of conceptual decolonisation if coloniality and epistemic injustice is to be undone. In this sense, a true (South) African dispensation may be disclosed.
A RIGHTS-BASED APPROACH TO DEVELOPMENT: THE LINK BETWEEN HUMAN RIGHTS AND DEVELOPMENT
This article explores the relationship between human rights and development and the emergence of a Rights-Based Approach to Development (RBAD). It will give a RBAD more consideration in order to contribute to the conceptual direction of academic discourse, and perhaps even the political direction by proposing solutions to Africa’s socio-economic problems, especially in South Africa, which is facing many developmental challenges. Human rights and development have long been understood as separate terms that were incompatible. Historically, development was only perceived for its role in promotion of economic growth and prosperity of particular countries without any consideration for human development and well-being. However, human rights and development cannot be understood separately. Development and human rights share the same goal, which is to promote the dignity and worth of a human person by creating an environment where people can achieve their full potential. Following the adoption of the UN Charter in 1945, development became a key issue for the United Nations and, for the first time, for the international community. Human development is now central to the realisation of human rights. After many years of debating development and human rights, it was agreed that human rights standards and principles do indeed recognise the link between human rights and development. In the 1990s, a RBAD emerged, transforming the global development order and affirming this relationship.
THE DEVELOPMENT OF A WESTERN-CENTRIC NOTION OF MODERNITY AND THE INCLUSIVE RECONSTRUCTION THEREOF ACCORDING TO THE TWAIL PRINCIPLES
Modernity significantly influences global action regarding social, political, and economic justice and liberation. Because of this, its flawed origins cannot simply be ignored. This article explains the development and current conception of economic, social and political modernity and shows how non-Western thought is excluded from these spheres. The article focuses on problematising he recent construction of modernity by showing how modernity is founded on Western ideals. Additionally, this article tracks the spread and universalisation of modernity by cruel and illegitimate means like colonialism and the othering of indigenous peoples. All these form the basis for an arguments that there must be a substantial reconstruction of the concept of modernity, and TWAIL’s relationship with international law is offered as inspiration for such a reconstruction.
WHAT IS IN A SURNAME? AN ENQUIRY INTO THE UNAUTHORISED NAME CHANGES OF MARRIED WOMEN
In recent years there have been reports of the Department of Home Affairs changing women’s surnames to that of their husbands upon the conclusion of a marriage without the married women’s consent. This conduct by the Department of Home Affairs officials infringes, as this article will argue, not only on the affected women’s right to just administrative action but also on the rights to equality and dignity and, in some instances, freedom of movement and universal suffrage. This article enquires into the possibility of taking the conduct of the Department of Home Affairs, which arguably amounts to administrative action, on judicial review seeking systemic relief. It will look at the sexist and patriarchal social norms relied upon to justify the conduct of the Department of Home Affairs and calls for intervening measures that not only result in broader social recognition but also effectively dismantle the systems and frameworks of inequality that continue to marginalise and subjugate women in the socially constructed gender hierarchy.
THE CHINA-AFRICA JOINT ARBITRATION CENTRE (CAJAC)
The People’s Republic of China (PRC) continues to consolidate its position as one of the most important trade players on the international market. The PRC has signed cooperation agreements with more than 126 countries. It is also a substantial importer of raw materials, intermediate inputs, and other goods. The PRC has dealings with all 54 countries on the African continent, and today the continent ranks as one of the PRC’s most important trading posts. The increasing number of international trade and investment means naturally, that disputes of an international nature will arise between the PRC and African parties. It is for this reason that the China-Africa Joint Arbitration Centre (CAJAC) was established. The formation of CAJAC at the instance of the Forum on China – Africa Cooperation (FOCAC) is to encourage is to administer the resolution of international disputes arising between Chinese and African entities having their principal residence, place of business or nationality located in PRC or a country in Africa. The aim of this article is to examine the salient features of CAJAC which is administer by accredited institutions which include CAJAC Beijing; CAJAC Johannesburg, CAJAC Nairobi, CAJAC OHADA, CAJAC Shanghai and CAJAC Shenzhen.
THE TAXATION OF IMAGE RIGHTS IN SOUTH AFRICA: VALIDITY OF TAX MINIMISATION SCHEMES
Sport undeniably plays a major role in society today. Over the years, it has developed into n free-standing industry and its players have become increasingly valuable and earn income both on and off the field. This article addresses the income generated by sport stars off the field of play through the exploitation of their ‘image rights’. The use of someone’s image rights can be explained as the practice of appropriating someone’s personality. In modern society, people have become transfixed by sport stars. This has led to the image rights of individual sport stars such as Lionel Messi and Cristiano Ronaldo to become commodities exploited by their clubs and other third parties to enhance brand images and promote the sale of products.1 This use of the image rights of celebrities generates a whole new source of income for these sport stars. Due to the relatively high amounts of income received for the use of a sport star’s image, these stars may be tempted to enter into creative schemes in an attempt to reduce high taxes levied against these streams of income. The practice of the commercial exploitation of a sport star’s image rights is a relatively new development in South Africa and is not yet recognised to the same extent as in other jurisdictions, such as the UK and Spain. This article examines the existing South African sport, intellectual property, and tax laws governing image rights and specifically analyses whether South Africa is sufficiently equipped, under tax legislation, to address these minimisation schemes aimed at reducing the tax liability arising from a South African sport star’s image rights.
THE APPRAISAL OF THE ‘MARKET OVERT’ PRINCIPLE VIS-À-VIS SALE OF GOODS IN ZAMBIA: A COMPARATIVE STUDY OF NIGERIAN AND SOUTH AFRICAN COMMERCIAL LAW
This article is inspired by a need to clarify and appraise the law relating to the sale of goods with particular attention to the market overt principle in Zambia. This will be done by conducting a comparative study between Zambia, South Africa, and Nigeria. The article investigates methods for constructing a preferable legal regime for individuals and businesses, particularly economic transactions. It further assesses the Zambian Sale of Goods Act of 1893 (56 & 57 Vict. c.71) as it relates to the market overt principle. I also highlight weaknesses in the current law requiring remedial action.
REALISING THE RIGHT TO DEVELOPMENT IN GHANA THROUGH ITS PARLIAMENT
The right to development (RTD) remains a controversial subject at the international level due to disagreements over its nature as a collective and a people’s right. This notwithstanding, the RTD is recognised by the African human rights system as a collective right encompassing all fundamental rights and freedoms. Besides, the ratification of the African Charter on Human and Peoples’ Rights (ACHPR), which recognises the RTD coupled with the implicit recognition of the RTD in the 1992 Constitution of the Republic of Ghana, makes the RTD an entitlement for Ghanaians. However, its realisation by the state through the executive appears challenging, considering the level of development in Ghana. This article, therefore, explores an alternative focused on legislative measures. The article seeks to demonstrate the extent to which the RTD can be realised in Ghana through its Parliament. It argues that removing the constitutional constraints on Parliament will potentially make the institution contribute significantly towards the realisation of the RTD.
WIN-WIN OR WIN LOSE? AN EXAMINATION OF CHINA’S SUPPLY OF MASS SURVEILLANCE TECHNOLOGIES IN EXCHANGE FOR AFRICAN’S FACIAL IDS
The use of Facial Recognition Technologies (FRT) has become increasingly prevalent. While these technologies have been applauded for their many benefits, their use have been criticised for problems relating to accuracy. More particularly, FRT technologies have demonstrated low accuracy when identifying people of colour. This has led to the call for diversification of data, which has been intensified by major corporations and nations competing to lead in Artificial Intelligence development (the AI race). In an attempt to diversify its data sets, China, as a significant player in the AI race, has entered into an agreement with Zimbabwe. The agreement is meant to benefit both parties mutually as a ‘win-win’ agreement, which entails the collection of African facial IDs in exchange for high-end mass surveillance technologies. This article questions whether this agreement can genuinely be a win-win. To demonstrate this, the article will discuss and analyse China’s viewpoint on this ‘win-win’ in light of the AI race and take a closer look at how this agreement places China one step ahead of others in the race to lead facial recognition technologies. As such, the article examines that which is hidden in China’s win-win perspective by delving deeper into the biometric data and the underlying principles of its Regulation to determine whether the collection of Facial IDs is in line with these principles. Finally, I attempt to redefine the meaning of what is truly a ‘win-win’ in this context.
A CASE FOR PERSONS WITH DISABILITIES: USING DIGITAL COURTS TO PROMOTE THE RIGHT TO ACCESS TO JUSTICE AND THE RULE OF LAW
Access to justice is an essential human right and a cornerstone of the rule of law. The 2030 Agenda for Sustainable Development seeks to, amongst other things, promote the rule of law and ensure equal access to justice, promote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable, and inclusive institutions. As a marginalised group, persons with disabilities are often spectators to their grievances when accessing justice, notwithstanding the strong protection afforded by the Convention on the Rights of Persons with Disabilities (‘the CRPD’). Under the CRPD, the right to access justice requires justice to be accessible, practical, and without discrimination. Nevertheless, research indicates that persons with disabilities are most likely to be left out of the legal system as there are numerous barriers that prevent them from accessing justice. In 2020, while the world faced an outbreak of COVID-19 cases, courtrooms worldwide had to review their operational methods. Initially aimed at hearing cases remotely and prevent a backlog of cases, the question arises as to whether digital courts could not be adapted to promote the right to access to justice for persons with disabilities. Article 13 of the CRPD contains essential provisions on the right to access justice. If designed, tested, and implemented correctly, digital courts could alleviate the inequalities faced by persons with disabilities. In essence, digital courts have the potential to make justice accessible and less hostile whilst also improving the communication and information barriers to the right to access justice. However, the advantages should not outweigh the potential exclusionary risk that digital courtrooms could create. Such courtrooms should be carefully implemented in close consultation with persons with disabilities.
A PROPOSED LIABILITY REGIME FOR AUTONOMOUS VEHICLES IN INSTANCES OF PERSONAL LIABILITY AND DEATH
This article aims to determine the most appropriate liability regime for accidents caused by Autonomous Vehicles (AVs) resulting in personal injury or death. The motivation for this research lies in the fact that AVs are currently not adequately regulated within South African legislation. Seeing as the regulation of AVs should begin sooner rather than later, it is essential to examine the capability of the Road Accident Fund (RAF) to provide for AVs and consider other possible liability regimes. The article will focus on the RAF Act and the possibility of including the definition of AVs under section 1 thereof. The RAF Act currently defines a motor car as a motor vehicle designed or adapted for the conveyance of not more than ten persons, including the driver. The article will analyse the Civil Aviation Act (Aviation Act) to propose a regime where the owners of AVs are required to have private insurance. Section 8(5) of the Aviation Act will form the basis for the proposed regime change as this section holds that a registered owner or operator of an aircraft must have insurance as prescribed for any damage or loss that is caused by an aircraft to any person or property on land or water.
POLICE BODY-WORN CAMERAS: A FOURTH INDUSTRIAL REVOLUTION DEMAND FOR SOUTH AFRICA?
Incidents of police brutality are increasing around the world. South Africa faces its own excessive use of force by police as exemplified by the case(s) of Khosa v Minister of Defence and Military Veterans, as well as that of Nathaniel Julies. Countries such as the United Kingdom (UK) and the United States of America (US) have seen positive results from leveraging advancements in technology to provide detailed, first-hand accounts of what happens during a police encounter. In light of the fourth industrial revolution, which brings with it advancements in data processing and storage, the purpose of this article is to investigate what value such advancements in technology might hold for the South African criminal justice system. Possible barriers to its implementation will also be investigated. The article further analyses the effects of body-worn cameras in the UK and US jurisdictions on improved police-citizen encounters and overall quality of policing. Body-worn cameras have been found to have value in improving police-citizen encounters. However, its adoption may be slow because of budgetary constraints related to Information Technology (IT) infrastructure.