The Pretoria Student Law Review 2021-06-28T10:37:45+00:00 Phenyo Sekati Open Journal Systems <p>The Pretoria Student Law Review (PSLR) at the University of Pretoria is a 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 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.</p> STATUTORY UTILITY RIGHTS TO REALISE ACCESS TO SERVICES AS A CHARACTERISTIC OF ADEQUATE HOUSING 2021-05-12T08:15:02+00:00 Gustav Muller <p><span style="font-weight: 400;">Government of the Republic of South Africa v Grootboom1 (‘Grootboom’) is a landmark judgment for the interpretation of the right of access to adequate housing in South Africa. In this case the Constitutional Court was confronted with the intolerable and exigent housing needs of Ms Irene Grootboom and her fellow respondents in the Wallacedene community. The community had no access to potable water and sanitation services, the municipality did not collect their domestic refuse, and very few of the informal structures had access to electricity.2 Many members of the community applied for access to low-cost subsidised housing from the Oostenberg Municipality and had been in the housing queue for almost seven years. Despite their actions they faced the prospect of enduring these intolerable conditions indefinitely. Since this prospect was unbearable, the respondents moved out of their waterlogged informal settlement onto a vacant, privately-owned property above the flood line where they erected their informal structures.3</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review THE EXPERIENCES OF WOMEN AND BARRIERS FOR CAREER ADVANCEMENT IN TERTIARY INSTITUTIONS IN A SOUTH AFRICAN CONTEXT 2021-05-12T08:37:20+00:00 Bernardete Mendes <p><span style="font-weight: 400;">In 1994, South Africa became a democratic state and focused primarily on advancing and protecting human rights; however, these rights had to first be constitutionalised. As a result, the South African Constitution was adopted in 1996 with fundamental rights under its Bill of Rights, which ensures that government can be held accountable for the protection of citizens’ rights. One of the fundamental rights entrenched in the Constitution is gender equality, which aims at increasing access for women to the public sphere and opportunities. The right is supported by domestic legislation and binding international law instruments. There is, however, limited research on the lived experiences of women at various institutions in South Africa post the adoption of the various gender equality laws, prompting the question: are institutions implementing, practicing, and embracing gender equality? This article discusses the experiences of women and the challenges that they face in the education sector focusing specifically on tertiary institutions in the context of gender equality and women as staff. The article argues that although — legislatively — South Africa has committed to gender equality, by ensuring equal representation and access to opportunities for women, the challenges that women are facing in the higher institutions show that law is not enough to deal with gender equality: There is a need for government to focus on redressing the challenges that women still face in tertiary institutions.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review ‘I’VE CHANGED’ SAYS SOUTH AFRICAN LAW: HAS THE JUDICIARY OPENED UP TO BLACK WOMEN LAWYERS? 2021-05-12T09:01:39+00:00 Cebolenkosi Makhaye <p><span style="font-weight: 400;">Historically, South African law and legal culture has been an exclusionary field towards a number of different groups of people. One of the most glaring of these exclusions is that of black women lawyers. South African law and politics have claimed to have changed, but one still finds spaces that have not quite had the substantial kind of change that would be in line with the transformative nature that our constitution demands or at the very least, there is still plenty of room for improvement. The 2017/2018 statistics from the Law Society of South Africa (LSSA)1 paints a clear picture of the past and current legal spheres. I will also rely on some sentiments that I have read from a number of black women scholars in legal practice to give the perspective to what working as a black women lawyer in South Africa is like.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review SEXUAL ORIENTATION AND GENDER IDENTITIES (SOGI) LAW AND SOCIAL CHANGE 2021-05-12T09:07:12+00:00 Chanelle van der Linde <p><span style="font-weight: 400;">It has been widely acknowledged in the realm of research that Africa is historically a diverse continent for gender identities and sexual orientations and practices. Research conducted through various disciplines depicts accounts of unique bond-friendships and dynamic gender roles that existed openly prior to the introduction of colonial discriminatory laws. With variation in social and legal positions with regard to LGBTQIA+ rights and recognition over time and space, the question is postulated of how the natures of social and legal change affects the relationship between these positions. The adoption of Queer Theory, as a lens of analysis, does not dichotomise the relationship of social and legal changes through a riddle of which came first, but rather acknowledges the domination of prevailing anti-LGBTQIA+ sentiments in colonial governments through the mechanism of law. The embedment of queer phobia into social institutions allowed for its continued existence postindependence through the shift in perspectives and attitudes toward LGBTQIA+ persons by individuals in society. Though individuals and collectives continue advocating for the recognition and realisation of legal rights and protections for LGBTQIA+ persons throughout the continent, varying legitimisation has only been seen in limited countries such as South Africa, Botswana, and Angola.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review GAME OF THRONES: THE BATTLE OF THE MPHEPHUS 2021-05-12T09:13:50+00:00 Gudani Tshikota <p><span style="font-weight: 400;">South Africa, like the whole of Africa and many parts of the world, was not immune to Western civilisation, and this ‘civilisation’ was accompanied by the imposition of Western ideas, laws, cultures and traditions, and many other attributes of conquest.3 African law was infiltrated and distorted beyond recognition, resulting in the origination of ‘official’ customary law, which remains stagnant and incapable of accounting for the needs, values and circumstances of an ever-changing society.4 This study looks at the battle for the Vhavenda kingship/queenship between Masindi Mphephu (hereafter ‘Masindi’) and Toni Peter Mphephu (hereafter ‘Toni’) and contends that the Supreme Court of Appeal’s decision was correct in light of the values enshrined in our constitutional democracy.5 This is done by looking at the decision pertaining to the principle of male primogeniture in Bhe and Others v Khayelitsha Magistrate and Others (hereafter ‘the Bhe case’) and succession in Shilubana and Others v Nwamitwa (hereafter ‘the Shilubana case’).6 Throughout this study, the adoption of ‘living’ customary law by judicial systems and the legislature is proposed as a catalyst towards the transformation of customary law.7 Finally, this study contends that the pronouncement of Masindi as queen would be a step towards the transformation of customary law.8</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review CRITICAL RACE THEORY AND FEMINIST LEGAL THEORY: PERSPECTIVES ON TRANSFORMATION OF THE JUDICIARY 2021-05-12T09:22:36+00:00 Hayley C. Warring <p><span style="font-weight: 400;">Referring to judicial appointments, Plasket J commented in 2013 that he could see ‘no basis on which [the Judicial Service Commission] could refuse to appoint a suitably qualified person’ in the presence of qualified white candidates.1 He was not alone in this view. Others have suggested that the Judicial Service Commission (JSC) is biased in favour of black and female candidates to the detriment of their white male counterparts.2 In this article, I will not endeavour to determine whether this bias in fact exists. The aim of this article is to explore Feminist Legal Theory (FLT) and Critical Race Theory (CRT) perspectives on transformation and the right to equality, with particular attention paid to transformation of the judiciary. This article consists of six parts. In the first section, the historical context of the JSC’s establishment, as well as the standard against which its decisions are measured, is explored. Secondly, the right to equality viewed through the lens of transformative constitutionalism is assessed. The third and fourth segments of this article focus on FLT and CRT respectively. Fifthly, I analyse the commentary from CRT and FLT scholars on human rights and transformative constitutionalism. Finally, I attempt to justify the act of abstention from making appointments in relation to FLT and CRT’s notion of refusal.&nbsp;&nbsp;</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review INTERNATIONAL LAW RULES RELATING TO MIGRATION ARISING FROM RISING SEA-LEVELS 2021-05-12T09:38:18+00:00 Keketso G. Kgomosotho <p><span style="font-weight: 400;">Global sea-levels have been on the rise for the past three centuries. Recent trends show that sea-levels rose by at least 20 centimetres (cm) in the 20th century alone.1 At current global greenhouse-gas emission levels, it is estimated that sea levels will continue to rise by a further 77 cm by 2100. Sea-level rise, a gradual rise in the volume of the ocean, occurs when there is thermal expansion of water levels which is caused by an increase in ocean temperatures, coupled with the gradual melting of glaciers and other frozen water reserves. If global predictions are realised, the rise in water levels will lead to the partial (and at time complete) inundation and depopulation of State territories — specifically low-lying and small island States.2 This rise in sea water levels is a direct result of climate change, and has presented a number of international law challenges, including to areas of law dealing with the continued statehood of inundated States; the law of the sea; and the protection of persons migrating as a result of sea-level rise. The paper will draw focus from this latter issue. The paper begins by providing context to the discussion, specifically, drawing connections between the gradual rise in water levels, and migration. This first section will show that the further the habitability of low-lying and coastal areas is negatively impacted by rising water table, the human rights implications, too, ascend to greater levels of severity and urgency. Next, the paper will provide an overview of existing rules of international law that bear relevance to migration induced by rising sea-levels, while the last section proposes, as starting point, a number of general rules and principles of international law to inform the development of a joint and separate international response to the challenges presented by migration in the context of rising sea levels. Finally, the paper will offer some concluding remarks</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review CONSUMER OVER-INDEBTEDNESS LANDSCAPE: THE OBLITERATION OF A CREDITOR-ORIENTED APPROACH THROUGH THE DEBT INTERVENTION PROCEDURE? 2021-05-12T12:00:29+00:00 Khalipha Shange <p><span style="font-weight: 400;">As observed by Coetzee and Roestoff, the South African natural person insolvency system remains creditor oriented and as a ramification many over-indebted consumers are excluded from access to debt alleviation measures.1 There are three debt alleviation measures available to natural persons in South Africa, of which only the sequestration procedure under the Insolvency Act provides an over-indebted consumer with a discharge from pre-insolvency debts.2 However, the principal requirement of proving financial advantage to creditors restricts access for many debtors as they do not have sufficient disposable assets to satisfy the requirement.3 The other two debt alleviation measures are the administration order provided in the Magistrates Court4 and debt review under section 86 of the National Credit Act.5 These measures have been heavily criticised for their reliance on the courts and for only providing debt repayment plans with no provision for discharge.6 This article commences with a detailed discussion of the debt intervention procedure provided by the 2019 National Credit Amendment Act.7 Thereafter, the New Zealand insolvency system is discussed. The purpose is to benchmark the debt intervention procedure against the New Zealand insolvency system in order to ascertain if it obliterates a creditor-oriented approach.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review THE CONSTITUTIONALITY OF WARRANTLESS SEARCH AND SEIZURE OPERATIONS 2021-05-12T12:10:49+00:00 Lehlohonolo January <p><span style="font-weight: 400;">This research will thus consider whether or not section 22 of CPA is inconsistent with the spirit, purport and object of the Constitution. To provide a brief overview of this paper; the introduction will illuminate the aim of the research followed by an examination of what constitutes ‘search’ and ‘seizure’ in terms of CPA. The paper will thereafter consider the existing jurisprudence on search and seizure operations and elucidate the manner in which search and seizure operations affect certain rights in the Bill of Rights. An examination of search and seizure operations under Canadian law will be conducted with the paper culminating in a conclusion containing recommendations regarding the enforcement of search and seizure operations.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review A COMPARATIVE ANALYSIS OF THE PROPOSED MANDATORY NATURE OF EMPLOYMENT LEGISLATION AND ITS INTERACTION WITH THE CHOICE OF LAW OF AN INTERNATIONAL CONTRACT 2021-05-12T13:19:46+00:00 Marcia van der Merwe <p><span style="font-weight: 400;">In an ever-changing world characterised by globalisation there has been a steep increase in employment contracts with an international character. This may lead to a conflict of laws whereby a forum court is confronted with the application of either the forum’s domestic laws or those of a foreign judicial system. In these cases we are confronted with the interaction between party autonomy and the limitations placed on the exercise thereof. The international legal community has yet to reach a consensus on the requirements of the exercise of party autonomy, and thus there are no ‘supra-national laws’ governing party autonomy.1 Only in extraordinary circumstances will the forum court divert from the proper law of the contract and in doing so veer from the principle of freedom to contract.2 This is illustrated in Louks v Standard Oil Company of New Jersey3 where Cardoza CJ stated so congruously in his obiter that ‘we are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home4.’ This article will endeavour to give an overview of the interaction between the proper law of a contract as chosen by the contracting parties in an international contract and the mandatory rules of a forum court that may be under consideration. This article will undertake a critical comparison and analysis of the methods and reasoning applied by the courts in the jurisdictions of New Zealand, the United Kingdom and South Africa in respect of the mandatory nature of employment legislation and its interaction with the choice of law of an international employment contract. This will be done in reference to a specific company, Cathay Pacific, its employment contracts and the court cases that flowed from the choice of law clause in the contracts between Cathay Pacific and its employees in both New Zealand and the United Kingdom. A discussion of the possible repercussions of such a clause in a South African legal context will follow.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review PROPERTY RIGHTS AND THE BASIC STRUCTURE OF THE CONSTITUTION: THE CASE OF THE DRAFT CONSTITUTION EIGHTEENTH AMENDMENT BILL 2021-05-12T13:33:35+00:00 Martin van Staden <p><span style="font-weight: 400;">The land reform debate in South Africa has always been as contentious as it is controversial. Up to now, however, it has not reached the intensity of bringing about changes to South Africa’s fundamental law. In February 2018, Parliament resolved in favour of adopting an amendment to the Constitution that would allow government to expropriate private property without being required to pay compensation.1 This began a process that eventually culminated in the December 2019 publication of the draft Constitution Eighteenth Amendment Bill. This is the first time since the Constitution was enacted that an amendment has been introduced to change a provision in chapter 2, in this case section 25. The basic structure doctrine is a judicial doctrine that features most prominently but not exclusively in the constitutional law of India.2 The doctrine’s essence is that constitutional amendments, despite complying with the formal requirements for amendment set out in the constitutional text, might still be struck down by a court because the amendment offends the constitution’s foundational principles, its identity, character, or logic — its basic structure.3 In 2005, Devenish wrote that the basic structure doctrine has been implicitly recognised by the Constitutional Court as applicable in South Africa, but that ‘the doctrine is waiting in the wings, since, should certain circumstances and a crisis situation arise, the Constitutional Court could invoke its application’.4 At the time of Devenish’s writing, there was no pending amendment of the Bill of Rights, unlike today. In this paper, I briefly summarise the amendment procedure set out in section 74 of the Constitution, and the process that has taken place between February 2018 and June 2020. Thereafter, I briefly discuss the basic structure doctrine and its potential application in South Africa. Finally, I consider whether the basic structure doctrine could be employed as a viable challenge to the draft Constitution Eighteenth Amendment Bill. The question that is inevitably considered: Has the crisis, that Devenish referred to, arrived?</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review SPEAK NO LAW WITHOUT JUSTICE: EVALUATING THE RETROSPECTIVE FORCE OF DECLARATIONS OF UNCONSTITUTIONALITY WITH SPECIFIC REFERENCE TO QWELANE V SAHRC & OTHERS (686/2018) [2019] ZASCA 167 2021-05-12T13:49:04+00:00 MP Fourie Marno Swart <p><span style="font-weight: 400;">On 29 November 2019 the Supreme Court of Appeal handed down judgment in Qwelane v SAHRC &amp; Others1 (Qwelane) wherein the notorious hate speech prohibition, section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act2 (PEPUDA), was declared unconstitutional and invalid. This decision, predicted by many and applauded by some,3 now awaits confirmation by the Constitutional Court. However, the focus of this article pertains not so much to the merits of the decision in Qwelane, but to the (possible) retrospective force of this judgment and more broadly to declarations of unconstitutionality and their retrospectivity in general. This article will evaluate whether or not it can be regarded as just and equitable to limit the retrospectivity of the Qwelane decision. This will be done by examining case law of a similar nature and by exploring the array of decisions taken under section 10 of PEPUDA. This inquiry will also consider the possibility of a special judicial arrangement to be made by the Constitutional Court, as well as some practical considerations that have to be regarded such as costs and the applicable procedural law. The arguments put forward are also applicable to future declarations of unconstitutionality. The task of the courts is rarely easy and their orders often inconvenient; more so where the injustice was caused by the very instrument that was formulated to protect our fundamental rights — the law. Yet, the severity of the task at hand should never move our judiciary to speak law without justice. For this purpose the current article will firstly examine the facts of Qwelane and thereafter we will discuss the theoretical underpinning of declarations of unconstitutionality and constitutional changes in this regard. This will be followed by an analysis of case law in which the retrospectivity of declarations of unconstitutionality was significant, whereafter the nature and scope of decisions taken under section 10 of PEPUDA will be evaluated. The injustice of (potentially) limiting the retrospectivity of Qwelane will then be considered and finally, the article will conclude by looking at certain procedural matters.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review A CRITIQUE OF THE DETERMINATION OF A COMPOSITE SUPPLY FOR VAT PURPOSES IN SOUTH AFRICA: LESSONS FROM SELECTED COUNTRIES 2021-05-12T13:58:41+00:00 Mzwandile Ngidi <p><span style="font-weight: 400;">To determine, for the purposes of the Value-added Tax Act (‘VAT Act’)1 whether a supply consists of a composite supply or several distinct supplies is paramount. Amongst other reasons, it impacts on how the entire supply should be treated under the VAT Act (i.e. standard, exempt or zero-rated). The treatment of the supply not only affects the applicable tax rate, but it also impacts the value added tax (‘VAT’) claimable or payable when acquiring or selling the supplies. The incorrect treatment of the supply puts the taxpayer at risk since the tax authority may raise reassessments and impose penalties. Therefore, where a supply entails the supply of goods or services or both, it is essential for a vendor to correctly treat the transaction to avoid these repercussions. The aim of this paper is to illustrate that the South African (SA) approach to determining whether a separate part is made is not in line with the international approach. The domestic approach appears to ignore essential elements that are widely accepted when deciding if a supply is single or composite. This paper argues that this approach may in some cases yield unfavourable results in term of VAT. The paper is structured as follows; Part I, briefly discusses the meaning of the composite supply; Part II, provides the South African approach to composite supply; Part III, outlines how the EU and CAN jurisdiction’s VAT systems treat the composite supply; Part IV, points out the shortcomings of the South African approach to the treatment of the composite supply; Part V, outlines the recommendations may be implemented so to align the South African approach with the international perspective.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review WORKERS OF THE WORLD, UN-UNITED: A DISCUSSION THROUGH A GENDERED LENS ON WHY STRONGER PROTECTION OF WORKERS IN THE INFORMAL ECONOMY WILL BETTER EQUIP SOUTH AFRICA TO COPE WITH LABOUR MARKET CHANGES OF THE FOURTH INDUSTRIAL REVOLUTION 2021-05-13T08:16:18+00:00 Shaniaé Maharaj <p><span style="font-weight: 400;">This article will investigate the readiness for labour legislation to cater for the Fourth Industrial Revolution (4IR) by comparing the structure of the current labour market and that of the future, through a gendered perspective. There are two core protections that underpin employee entitlements and rights. The first is the formal recognition of an individual as an employee or worker, which is often formalised through an employment contract. Many South Africans are engaged with work in the informal sector which do not make them privy to most of those rights and entitlements. This is problematic when considering how vulnerable these individuals already are, and that black women are concentrated in this sector. The inadequate protection of informal workers is going to pose challenges for South Africa’s ability to cope with changes brought on by the Fourth Industrial Revolution and the projected shift towards labour flexibility and casualisation. The second is collective bargaining, which empowers other rights to be realised. Collective bargaining is framed through the use of trade unions as its primary mechanism. While they may have been relevant at the time of the Labour Relation’s Act’s (LRA) inception, they have become an inappropriate medium to further workers’ rights and are projected to continue to lose members in the near future, as organisation cannot happen as effectively with a decentralised workspace and an incoherent internal firm structure. I will conclude the piece by offering recommendations which encourage more progressive labour legislation that takes into account both the changing nature of work and the specific interests of women.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review DISMANTLING THE STATUS QUO: PROHIBITING UNFAIR DISCRIMINATION ON THE GROUNDS OF POVERTY UNDER CAPITALISM 2021-05-13T08:29:42+00:00 Sohela Surajpal <p><span style="font-weight: 400;">The first part of this paper discusses the approach of the South African courts to socio-economic rights, arguing that it has resulted in limited progress in alleviating poverty. The Equality Court’s incorporation of equality law into socio-economic enquiries in Social Justice Coalition v Minister of Police could strengthen the case of claimants and override certain factors that cause the courts to defer to the executive, thus compelling the State to provide more immediate relief. This section also attempts to apply the prohibition of discrimination on the grounds of poverty to commercial entities. By understanding discrimination as the denial of advantages or opportunities, the argument that the economy and private companies depend on discriminating against the poor to function is advanced. The second part of the paper discusses the requirement that discrimination be unfair in order to be prohibited. It assesses the likelihood of courts finding that budgetary constraints and profit incentives are legitimate purposes served by discrimination on the grounds of poverty. Finally, the last part of this paper discusses whether antidiscrimination law is an appropriate tool for the eradication of poverty. Several criticisms of transformative constitutionalism, human rights discourse and anti-discrimination law are engaged with to show that anti-discrimination law, as it currently exists, will at most target incidents of poverty-based discrimination using moderate forms of relief that allow for the continuance of an oppressive capitalist order rather than creating systemic change. The courts will have to make radical decisions, which depart from conservative South African legal culture if the decision in Social Justice Coalition v Minister of Police is to have far reaching impact. </span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review NEOLIBERALISM AND INEQUALITY IN POSTAPARTHEID SOUTH AFRICA 2021-05-13T08:34:55+00:00 Thabiso Mfete <p><span style="font-weight: 400;">The article will uncover how socio-economic inequality is prevalent in our democratic dispensation using mainly two theories: Critical Race Theory and Critical Legal Studies. The latter theories provide the lens through which we can evaluate, analyse, and criticise neoliberal policies in our contemporary society. I will argue that it is preposterous to theorise and understand neoliberalism and race as two separate entities that sometimes interconnect.2 The article will outline how race and neoliberalism are co-constitutive.3 In explaining the concept of neoliberalism, the article will also answer pertinent questions arising in South Africa’s contemporary context such as: why do the black- majority remain structurally poor in ‘post-apartheid’ South Africa when it is thought to be the best and most progressive constitution (with first 1st, 2nd, and 3rd general rights) in the world? And who benefits from these policies since socioeconomic inequalities have deepened? Lastly, I will come up with a well-thought alternative that best fits our democratic dispensation.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review WHEN LIFE GIVES YOU LAW, MAKE LEMONADE: EXPLORING THE ‘LEGALISED’ OPPRESSION OF BLACK WOMEN IN THE UNITED STATES OF AMERICA AND SOUTH AFRICA AND THEIR MUSICAL RESPONSE THERETO 2021-05-13T08:43:38+00:00 Thandeka N. Khoza <p><span style="font-weight: 400;">‘Oppression’ can take a great number of forms, depending on its context, purpose and subjects. The forms of oppression which are the subject of this article are racial prejudice and patriarchy. These two forms of oppression are relevant here to the extent that they are imposed on Black women. Within this context, the struggle of Black women is twofold, in that it is comprised of the Black person’s struggle, against racial prejudice, as well as the woman’s struggle, against patriarchy. Additionally, this struggle, against racial prejudice and patriarchy, is also twofold in the sense that it exists in society and is also condoned by the law. Therefore, the racial prejudice will be discussed as it relates to the Blackness of Black women and the patriarchal prejudice will be discussed as it relates to the ‘womanness’ of Black women. This paper, then, recalls the racial and patriarchal oppression of the Black woman by looking at the said oppressions as they have existed in society as well as some ways in which the law has aided or reinforced them. Once the oppressions, their existence and legal enforcement, have been outlined, this paper then visits the topic of music as a documentation of and escape from the experience of these oppressions by Black women. It should also be noted that, due to similarities which will be outlined in the article, the focus of this paper is squarely on the experience of the Black woman in the United States of America (USA) and South Africa. Therefore, some racially prejudicial laws will be sampled from these countries. Furthermore, some music by Black female artists from both countries will be sampled too. Above all, this article is presented as a reminder of sorts that the law does not exist in a vacuum — it applies to, has consequences for and is experienced by people.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review THE FOURTH INDUSTRIAL REVOLUTION: A CASE FOR EDUCATIONAL TRANSFORMATION 2021-05-13T08:56:12+00:00 Thembekile M. Mtsweni <p><span style="font-weight: 400;">In this article, I use the aims and objects of education to argue that educational empowerment involves skills development for 4th IR. At the backdrop of the meaning of ‘basic education’, I argue that any lack of adequate educational preparation for the 4th IR is an infringement on children’s constitutional right to basic education. Considering the wealth of jurisprudence centring on the right to basic education, it is further demonstrated that courts might be reluctant to grant remedies for the immediate realisation of curriculum change and other like-measures relevant for the 4th IR. This reluctancy is an aftermath of policy considerations to keep powers of the different arms of government purely separate. The conclusion reached is that: If the current judicial interpretive inflexibility and narrowness in approach to the right to basic education is maintained, and if this right is not fully fleshed out by the time the 4th IR is in full swing, the judiciary will not have an adequate, receptive and accommodating body of jurisprudence to refer to and rely on when adjudicating for educational changes required by the 4th IR. Courts will thus not be willing or positioned to find violations of the right as per the new de facto standards of the 4th IR. Consequences of this are: In the intermediate, the courts are unlikely or, on the jurisprudential approach, even unable, to find violations of the right to education where the Department of Education fails to take the necessary steps to give effect to the right; and that, given this judicial reticence and fettering, the jurisprudential position may continue to lag behind the dynamic lead of (global?) educational development in the wake of the 4th IR, meaning that the Department will likely not be compelled to catch-up to 4th IR progress if or when it, too, lags. And, assuming that landmark cases shift the jurisprudence on the right to education so as to catch-up to the 4th IR, outpacing a Department of Education which has been compliant with then previous jurisprudential standards, given the current and intermediate judicial reticence and fettering, the courts could plausibly then be left in a position of potentially ordering the executive to do the impossible and make-up the difference between a lagging education system and the 4th IR revolutionary requirements.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review THE GABRIEL FERNANDEZ CASE: A COMPARATIVE ANALYSIS OF A ‘MANDATED REPORTER’ IN LIGHT OF THE CHILDREN’S ACT 2021-05-13T09:01:40+00:00 Thiavna Subroyen <p><span style="font-weight: 400;">An analysis of the Gabriel Fernandez case will be presented in chronological order from 2012 to 2013 of the periods in which reports of abuse were made by various parties to the Los Angeles County Department of Children and Family Services (DCFS). Further scrutiny will be given to responses of the four social workers in their failure to respond to the reports and failure to take reasonable action to ensure the safety of the child and their intention to falsify records which had resulted in the death of Gabriel Fernandez on 23 May 2013. The social workers were charged with a section 273 Penal Code violation for child endangerment and were faced with a penalty of ten-year imprisonment if they were found guilty. This analysis will examine the final judgment that was handed down in January 2020 in which all charges were dismissed. The discussion of events leading up to Fernandez's death must be considered with the failure of social services in intervening and upholding the paramount interests of a child in an event where their rights may be violated, and where such environments may pose a risk to their health and safety. This paper then seeks to expand upon the discussion of the Gabriel Fernandez case in illustrating: firstly, the aspects which make up a mandated reporter in the case of child abuse. Secondly, the roles or obligations similar to the mandated report in the context of South African law, primarily, the Children's Act and thirdly, a comparative analysis against South African law, to determine if the Appellate Court was correct in its decision to acquit the social workers involved in the Gabriel Fernandez case.11</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review TRANSFORMATIVE ADJUDICATION AND THE PLACE OF ADMINISTRATIVE LAW IN SOUTH AFRICAN JURISPRUDENCE: ABSA BANK LIMITED v PUBLIC PROTECTOR 2021-05-13T09:07:47+00:00 Tshepo Twala Mpho Mogadime <p><span style="font-weight: 400;">The primary purpose of administrative law is to regulate the exercise of public power and the performance of public functions, which is informed by the constitutional principle of the rule of law.1 This paper argues that what underlies this objective in post-1994 mainstream transformation jurisprudence is a transformative approach in interpreting the Constitution,2 by which all exercises of power must be justified, including judicial interpretations.3 Klare coined this approach as ‘transformative constitutionalism’.4 This paper critically examines the decision in Absa Bank and Others v The Public Protector and Others (Absa case)5 concerning the High Court’s approach to adjudication in the administrative law and the role of a transformative constitutionalist approach to adjudication. The first part of this paper contains a brief exposition of the place of administrative law in the South African legal regime. In the second part of the paper, we provide a summary of the Absa case. We then provide a focussed discussion on procedural fairness as a cornerstone of good governance with respect to administrative conduct in the third section of the paper. The fourth part of the paper sets out what a transformative approach to adjudication is, including a discussion on how the Court in Absa dealt with the standard of fairness in relation to the Public Protector’s conduct from a transformative constitutionalist lens, on the one hand, and a critique on the Court’s application of the established principles of administrative law, on the other hand. Lastly, we conclude with recommendations in response to the Court’s seemingly split approach to transformative adjudication.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review THE PAS DE DEUX BETWEEN EDUCATION AND RECREATION: FACILITATING THE REALISATION OF ARTICLES 11 AND 12 OF THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD IN SCHOOLS 2021-05-13T09:19:46+00:00 Thandeka N. Khoza Cebolenkosi Zuma <p><span style="font-weight: 400;">&nbsp;The argument which will be advanced in this article is that African children would benefit from accessing schools which offer them an education infused with recreational activity, through the creation of space and time for recreational activity within the school day. To this end, it will be suggested that crafting curricula which include recreational activity, specifically in the form of dance, will assist to improve the quality of education available to African children. It is argued that this proposed curriculum is a move towards the provision of the quality education demanded by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in its Agenda 2040 for Children’s Rights in Africa (Agenda 2040).14 In order to do this, this article will first explore the content of article 11, which relates to the right to education. Thereafter, it will move to unpack the meaning of article 12, which deals with the right to recreational activity, as well as its implications. This article will then give a short account of the links between these provisions, within the context of the best interests of the child. Finally, the paper will conclude with a summary of its formulation, particularly within the context of Agenda 2040.</span></p> 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review EDITORS’ NOTE 2021-05-25T12:01:34+00:00 Simon Motshweni 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review Full Pretoria Student Law Review (2020)14 2 2021-05-20T05:15:49+00:00 Simon Motshweni Adelaide Chagopa Kayla Thomas Marcia van der Merwe Nicholas Herd Phenyo Sekati 2021-06-28T00:00:00+00:00 Copyright (c) 2021 The Pretoria Student Law Review