The Pretoria Student Law Review https://upjournals.up.ac.za/index.php/pslr <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> University of Pretoria en-US The Pretoria Student Law Review 1998-0280 SOCIAL JUSTICE AND COVID-19 IN THE ‘NEW’ SOUTH AFRICA: INVOKING RAMOSEAN MEDITATIONS IN PANDEMIC TIMES https://upjournals.up.ac.za/index.php/pslr/article/view/3809 <p>In this contributory essay to the 2021 Special Section of the PSLR spotlighting ‘Social Justice and COVID-19’, I attempt to challenge portrayals of the novel coronavirus (COVID-19) as an ‘indiscriminate’ and ‘equal opportunity’ assailant. In doing so, I endeavour to bring to the fore a reading of social injustices experienced during the ongoing COVID-19 pandemic that implicates not only systemic disadvantages inherited from apartheid but also the legacies of unjust colonial conquest. By underscoring memory as the possibility condition for restorative social justice within a progressively unjust South Africa, I draw on philosopher Mogobe Ramose’s counter-discourse meditations problematising the pervasiveness of colonial-apartheid conquest in a post-1994 liberal democratic polity. Accordingly, I align myself with perspectives that consider substantive social justice in a stratified ‘new’ South Africa to be a decolonial justice carved out by an African experience and memory, with the restoration of unjustly dispossessed land as a possibility condition for social cohesion.</p> Ilana le Roux Copyright (c) 2022 The Pretoria Student Law Review 2022-02-15 2022-02-15 15 1 10.29053/pslr.v15i1.3809 SOCIAL JUSTICE AND COVID 19 IN THE 'NEW SOUTH AFRICA: INVOKING RAMOSEAN MEDITATIONS IN PANDEMIC TIMES https://upjournals.up.ac.za/index.php/pslr/article/view/3654 <p>In this contributory essay to the 2021 Special Section of the PSLR spotlighting ‘Social Justice and COVID-19’, I attempt to challenge portrayals of the novel coronavirus (COVID-19) as an ‘indiscriminate’ and ‘equal opportunity’ assailant. In doing so, I endeavour to bring to the fore a reading of social injustices experienced during the ongoing COVID-19 pandemic that implicates not only systemic disadvantages inherited from apartheid but also the legacies of unjust colonial conquest. By underscoring memory as the possibility condition for restorative social justice within a progressively unjust South Africa, I draw on philosopher Mogobe Ramose’s counter-discourse meditations problematising the pervasiveness of colonial-apartheid conquest in a post-1994 liberal democratic polity. Accordingly, I align myself with perspectives that consider substantive social justice in a stratified ‘new’ South Africa to be a decolonial justice carved out by an African experience and memory, with the restoration of unjustly dispossessed land as a possibility condition for social cohesion.</p> Ilana le Roux Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3654 EDITOR'S NOTE https://upjournals.up.ac.za/index.php/pslr/article/view/3653 Phenyo Nomasonto Morwesi Sekati Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 Full Pretoria Student Law Review (2021) 15 https://upjournals.up.ac.za/index.php/pslr/article/view/3681 Phenyo (PNM) Sekati Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 THE ACCESSIBILITY AND EFFECTIVENESS OF SOUTH AFRICAN CIVIL LOWER COURTS https://upjournals.up.ac.za/index.php/pslr/article/view/3664 <p>Although the Constitution of the Republic of South Africa, 1996 guarantees everyone the right of access to courts and civil justice, many people still find themselves in a position where they cannot access the South African justice system, specifically concerning civil legal matters. While this problem has been recognised by various academics, authors, and even Constitutional Court judges, the understanding of what this right means empirically has only recently been understood in relation to South Africa’s civil justice system. This article, therefore, concentrates on the accessibility and effectiveness of South African civil courts. The focus is on civil lower courts given that most people who are exposed to the civil justice system do so by means of the Magistrates Courts only.</p> Llewelyn Curlewis Delano Abdoll Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3664 THE PLIGHT OF REFUGEES IN SOUTH AFRICA https://upjournals.up.ac.za/index.php/pslr/article/view/3649 <p>Democratic South Africa emerged in 1994 through a horrific history of exclusion, racial discrimination, and segregation. Following years of sanctions, boycotts, and disgrace from the international community, South Africa promised its people and the world that a new dawn had risen. A transformative constitution ushered in this change, determined to ensure equal rights and protection for all and to never repeat the crimes of the past. Unfortunately, this idealistic goal has not extended to all those who call South Africa home. The hard-fought battle against apartheid which was aided by many African countries did little for the status of asylum seekers and refugees in the post 1994 state. Refugees continue to be targeted and ostracised in our ‘free and equal’ land. This has given rise to violations of the international obligations that South Africa voluntarily assumed in 1996 in respect of refugees. Owing to the continued human rights violations of refugees and the state’s failure to translate visions of an equal and democratic South Africa beyond the borders of citizenship, redress is sorely needed. To this end, the landscape of refugee law is explored and outlined, both on the domestic plane and the international stage. A critical analysis of these sources will serve to concretise the position of refugees and asylum seekers, the shortfalls of the existing system, and the need for greater transformation and equality.</p> Abigail Emily Ashfield Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3649 AN ANALYSIS OF THE APPLICABLE LAWS ON THE PROTECTION OF TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSIONS IN NAMIBIA https://upjournals.up.ac.za/index.php/pslr/article/view/3680 <p>Traditional knowledge (TK) and cultural expressions are morevulnerable to infringements because of their nature and the lack of protection as intellectual property (IP) under many legal systems. TK can, however, contribute to the social and economic development of a country, the preservation of cultural heritage, and the increase in innovation and invention. It is for this reason that it is important to enact laws and formulate policies that recognise, promote, and protect TK and cultural expressions. An analysis was made on the protection offered under Namibian laws to holders of TK and cultural expressions and considered the adequacy and effectiveness of such laws. The findings show that on a regional level, Namibia is a party to the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, however, the Protocol has not been incorporated into national IP-related laws. In terms of domestic laws, there are no IP laws that expressly recognise and protect works of TK and cultural expression. However, there are policies such as the National Intellectual Property Policy 2019-2024 and the Namibia Arts, Culture and Heritage Policy 2021/2022-2023/2026, which recognises the value of TK and the need to protect TK and cultural expressions. Therefore, it is recommended that government should develop a <em>sui generis</em> system that can help foster the preservation and development of TK and cultural expressions. The system should take into consideration the current social and economic structures so that it can be effective. The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore can be used as a guide in developing a sui generis system for Namibia.</p> Frieda Shifotoka Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3680 FUTURE GENERATIONS AND THE ENVIRONMENT: A RIGHT TO INTERGENERATIONAL EQUITY UNDER INTERNATIONAL LAW? https://upjournals.up.ac.za/index.php/pslr/article/view/3666 <p>Climate change is becoming ever more pertinent and its impact ever more devastating. Issues such as deforestation, loss of biodiversity, and desertification are increasingly prevalent, leaving the present generation with numerous problems to contend with. But as climate change intensifies, those who will surely bear an even greater burden are the ones yet to come. Unless some form of equality is established between generations, future generations are likely to find themselves in a precarious and inhospitable environment. It is argued that one way of achieving an intergenerational balance is through a right to intergenerational equity. This article analyses the development and progression of the principle of intergenerational equity in international law. In doing so, the article interrogates the sources of international environmental law as well as international human rights law to determine whether a right to intergenerational equity exists. This analysis finds that no right to intergenerational equity has arisen under international law. Nonetheless, there seems to be a definitive trend toward the realisation of such a right on the international stage. Until such time as there is a right to intergenerational equity, certain institutions and mechanisms could be implemented or relied upon to safeguard the environmental interests of future generations.</p> Felix Schroder Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3666 THE IMPACT OF TRANSFORMATIVE CONSTITUTIONALISM IN ADDRESSING THE MARGINALISATION OF DOMESTIC WORKERS IN POST- APARTHEID SOUTH AFRICA WITH SPECIFIC REFERENCE TO MAHLANGU AND ANOTHER V MINISTER OF LABOUR AND OTHERS (COMMISSION FOR GENDER EQUALITY AND ANOT https://upjournals.up.ac.za/index.php/pslr/article/view/3667 <p>Domestic workers play an important role in supporting the labour market and the economy, enabling economically active members of society to pursue their careers and aspirations. Sadly, despite this, domestic work remains undervalued and unrecognised and domestic workers continue to suffer as the most oppressed and exploited sector of the economy. This paper will explore domestic workers’ rights in post-apartheid South Africa, as well as the reforms and measures taken to improve their employment conditions. Transformative constitutionalism will be scrutinised with reference to the case of <em>Mahlangu and another v Minister of Labour and Others</em> (Commission for Gender Equality and Another as amici curiae) as a possible answer to the continued marginalisation of domestic workers. Although transformative constitutionalism as a legal theory is still relevant for transformation, a large-scale cultural reform is also needed before domestic workers will finally enjoy the promise of a free and equal South Africa.</p> Kherina Narotam Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3667 BALANCING RIGHTS AMIDST SOCIAL MEDIA SCANDALS: HOW EMPLOYERS CAN DEAL WITH EMPLOYEES’ REPUTATION-DAMAGING AND/OR DEFAMATORY SOCIAL MEDIA POSTS https://upjournals.up.ac.za/index.php/pslr/article/view/3668 <p>It is unquestioned that social media is present in almost every aspect of our daily lives. Due to the widespread accessibility of posts on social media, comments posted by a person in his/her personal capacity often boils over and negatively affects his/her role as an employee. Posts have the potential to either damage the reputation of an organisation directly or indirectly (the latter being caused by an employee’s mere association with the business). Defamatory posts are becoming more and more common and, consequently, social media misconduct clashes are finding their way into dispute resolutions forums. These disputes create a constant battle between the rights of an employer and the rights of an employee. Given that social media misconduct can be rather complex, it is imperative that employers are aware of the legislation governing misconduct to ensure that they are well-prepared to take preventative or swift action should the need arise.</p> Amy Pawson Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3668 WHY DECOLONISATION AND NOT TRANSFORMATIVE CONSTITUTIONALISM https://upjournals.up.ac.za/index.php/pslr/article/view/3669 <p>Paul Mudau and Sibabalo Mtonga proffer ‘Extrapolating the role of transformative constitutionalism in the decolonisation and Africanisation of Legal Education in South Africa’ to contribute to the ongoing dialogue about South Africa’s LLB curriculum, and to make studied comments about the need to shift from colonial modes of knowing, thinking, and doing. Their article does well to study the strides that have been made in this discourse, as they make use of the University of Pretoria’s Curriculum Transformation Document as one example of the progress that has been made. Mudau and Mtonga conclude that adherence to transformative constitutionalism may enhance decolonisation and Africanisation, and thus lead to the gradual transformation of legal education in South Africa. This rejoinder sets the argument from a different starting point — it insists that the definitive thrust of the Decolonial Turn in South Africa presents a decided critique of the 1994 constitutional arrangement, therefore rendering transformative constitutionalism a misfit in the quest to decolonise and Africanise South African legal education. This article concludes by asserting that South African law teachers, and anyone interested in the quest to alter colonial pedagogies, should concern themselves with seeking definitional clarity, and the rest shall follow.</p> Ntando Sindane Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3669 DISMANTLING RACIAL ONTOLOGY: CONSTITUTIONAL ABOLITIONISM AS A SOLUTION TO SOUTH AFRICA’S ANTI-BLACKNESS AND WHITE SUPREMACY https://upjournals.up.ac.za/index.php/pslr/article/view/3670 <p>The constitution of the Republic of South Africa, 1996 (the 1996 constitution) is typically represented as the ‘best constitution’ in public and academic discourse around the world. In this article, the aim is to argue against this notion. The thesis presented in this article is, how can this constitution be regarded as the best in the world when it has failed to make possible conditions which mark a break from the cultural, social, and political order of colonial-apartheid South Africa? This article then explores a comparative analysis of the racial ontology of conquest pre and post-democracy. The conclusion is that the racial ontology of conquest remained unabated irrespective of the claims of freedom and a ‘new’ South Africa was supposedly ushered in by the 1996 constitution. Consequently, the notion of regarding the 1996 constitution as the beginning of a new South Africa and the end of Black people’s sufferings is outrightly rejected. The concept of constitutional abolitionism is thereafter adopted and placed as a catalyst towards a decolonised South Africa where the racial ontology of conquest would be undone. In giving a proper analysis of constitutional abolitionism as a theory of the constitution, the thought and practice of constitutional optimists and sceptics are also dissected and challenged.</p> Gudani Tshikota Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3670 A CRITIQUE OF THE AVAILABLE DEBT RELIEF MEASURES AFFORDED TO NINA DEBTORS IN THE WAKE OF TRANSFORMATIVE CONSTITUTIONALISM AND INTERNATIONAL TRENDS https://upjournals.up.ac.za/index.php/pslr/article/view/3671 <p>Insolvency law is well-established throughout the world and while there are measures in place for dealing with debtors who find themselves in varied circumstances, the issue of relief measures afforded to no- income, no-asset (NINA) debtors has posed quite an issue for many countries, South Africa particularly. When approaching bona fide NINA debtors, the concepts of equality and justice come into play with consideration to the socio-economic circumstances of many in South Africa, our woeful past, and the current ideals of transformative constitutionalism. This paper delves further into this issue and conclusively recommends that legislation be developed in line with other countries such as New Zealand and Kenya.</p> Zakariya Adam Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3671 THE ROLE OF UBUNTU IN THE LAW OF CONTRACT https://upjournals.up.ac.za/index.php/pslr/article/view/3672 <p>The history of South African law is quite unique. It has aspirations of transformative constitutionalism, yet the law is deeply rooted in the common law. Of particular interest are the roles of two principles in the South African law namely; pacta sunt servanda, which is one of the principles found in the common law of contract; and ubuntu, which is a unique African principle of humanness. The law of contract and the Constitution exist side-by-side, however, this is not without conflict. The article will provide a gentle walk through the principles in the law of contract, the <em>Mohamed’s v Southern Sun</em> case, and will finally<br>comment on the applicability of the principle of ubuntu versus that of the principle of <em>pacta sunt servanda</em>.</p> Pooja Pundit Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3672 A COMPARATIVE ANALYSIS OF THE MANDATORY RULE DOCTRINE AND ITS APPLICATION IN THE SOUTH AFRICAN LABOUR COURT https://upjournals.up.ac.za/index.php/pslr/article/view/3673 <p>Inherent in any employment relationship is the imbalance of bargaining power between the parties to the employment contract. On a globalised scale, this imbalance is exacerbated where employees are often reliant on the provisions within their contract to ensure they are adequately protected. Party autonomy enables the parties to choose the legal system that will govern these provisions and the employment relationship as a whole. The doctrine of mandatory rules purports to make applicable those ‘laws of a strictly positive, imperative nature’ so as to guarantee the protection of employees’ interests where party autonomy serves to conceal the power imbalance within the employment relationship. The Labour Court has, however, often misunderstood and neglected to consider the application of private international law rules, which are inclusive of the mandatory rule doctrine. The aim of this article is, therefore, to critically analyse the doctrine and question whether, from a comparative perspective, South African labour law can be considered as fitting within this framework as developed within the European Union and the United States, so as to ensure its protective elements are applied in the appropriate instances.</p> Elisa Rinaldi Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3673 THE IMPOSITION OF COMMON LAW IN THE INTERPRETATION AND APPLICATION OF CUSTOMARY LAW AND CUSTOMARY MARRIAGES https://upjournals.up.ac.za/index.php/pslr/article/view/3674 <p>South Africa has, over the past few years, seen the development of its jurisprudence in respect of the interpretation and application of African customary law under the new constitutional dispensation as it now also forms an integral part of South African law. Our courts are, in terms of the Constitution, required to apply African customary law when it is applicable, but like any other law, it is also subject to the Constitution. It is also submitted that due to the repercussions of the past, African customary law and laws regulating customary marriages are yet to reach their proper development, and this slow development is also caused by inconsistencies and the imposition of common law in the interpretation and application of African customary law and laws regulating customary marriages. Furthermore, African customary law should not be hinged on what colonisation bequeathed us, as the interpretation of our customary law through the prisms of common law frustrates the development of customary law — which has for a long time been prevented from developing securely alongside common law.</p> Celinhlanhla Magubane Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3674 BROKEN & UNEQUAL: THE SOUTH AFRICAN EDUCATION SYSTEM AND THE ATTAINMENT OF THE RIGHT TO BASIC EDUCATION THROUGH LITIGATION https://upjournals.up.ac.za/index.php/pslr/article/view/3675 <p>In 1994, South Africa transitioned into a new democratic and constitutional society. Since then, the South African Constitution<br>necessitates the transformation of the public basic education system. A new public education system aimed at addressing the malaise of the past. To this end, South African jurisprudence recognises the right to basic education as a right that must be (i) equally accessible to all and (ii) immediately realisable without delay. However, the new education system has not completely succeeded in eliminating the legacy of apartheid, and there are residual differences and polarisation on various grounds, such as race and/or class. Accordingly, this article concedes that a critical survey of South African jurisprudence on the realisation of the right to basic education reveals that there are problems in the delivery of the right to basic education in South Africa. This is particularly the case in relation to black and/or poor South African pupils in the public education system. As such, the article intends to show that litigation (or the threat thereto), plays a fundamental role in the realisation and fulfilment of the right to basic education in South Africa.</p> Simon Mateus Khalipha Shange Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3675 AN OVERVIEW OF THE REGULATION OF CRYPTOCURRENCY IN SOUTH AFRICA https://upjournals.up.ac.za/index.php/pslr/article/view/3676 <p>The increasing popularity of cryptocurrencies has raised many questions with regard to their regulation. Issues such as taxation and its role in criminal activities are of central importance to the way in which cryptocurrency will continue to develop and occupy space in society. In this paper, such regulatory aspects are explored, and South Africa’s response is addressed. With cryptocurrency growing worldwide at increasing rates, regulators are left having to respond quickly to this aspect of financial technology and while some have banned its use outright, others have taken the stance to embrace the use of cryptocurrencies to ensure it has a space for use in the future of the financial world.</p> Zakariya Adam Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3676 SCHOOL OF COURT: THE DEVELOPMENT OF THE RIGHT TO BASIC EDUCATION THROUGH LITIGATION IN SOUTH AFRICAN COURTS https://upjournals.up.ac.za/index.php/pslr/article/view/3677 <p>Education is a means to an end and a ‘good’ in-and-of-itself; but not everyone has equal access to it, if at all. South Africa’s history and extant legacy of colonial-apartheid has left in its wake structural barriers which continue to deny access to basic education for many, both young and old. Although there have been admirable reform efforts to engender system-wide improvements to access to and the quality of basic education through governance and the provisioning of resources, there are glaring shortfalls in making basic education ‘immediately realisable’ to ensure our constitutional vision of a transformed South Africa. Over time, non-governmental efforts aimed at realising basic education have turned to the courts to compel the state to make more equitable and qualitatively better provisions. In the historical and present circumstantial and structural status quo of basic education in South Africa, this paper explores the efficacy of such litigation efforts as well as litigation as a device to improve governance and access to basic education in our country.</p> Abena Osei-Fofie Nicholas Herd Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3677 ADMINISTRATIVE JUSTICE AND COMMUNAL SUBSISTENCE FARMING IN FOOT-AND-MOUTH DISEASE CONTROL: THE POSSIBLE APPLICATION OF PROPORTIONALITY AS A GROUND OF REVIEW UNDER THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 https://upjournals.up.ac.za/index.php/pslr/article/view/3678 <p>As one of the most contagious and economically impactful livestock diseases, foot-and-mouth disease presents South African lawmakers with the complicated issue of animal disease control. The regulation of the disease has a profound impact not only on commercial farmers but on communal subsistence farmers as well, whose stakes in control measures are often overlooked in policy-making. The authors investigate and crystalise the current legislative framework of foot-and-mouth disease control in South Africa against the backdrop of the scientific and epidemiological characteristics of the disease. The application of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to the control measures concerning the movement of animals is investigated and it is concluded that PAJA’s administrative law requirements apply to both the Animal Diseases Regulations and the policy documents in question. Thereafter the administrative law concept of proportionality is set out and it is shown that the current control measures fall short of the requirements of proportionality as codified in PAJA. Especially when considering the necessity and balance of the control measures in question, it is found that the interests and rights of small-scale communal subsistence farmers are not adequately considered and that international standards, regardless of their applicability to the South African situation, are often blindly imposed, thus leaving these overlooked stakeholders vulnerable to the adverse effects that arise thereafter.</p> Lielie Viljoen MP Fourie Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3678 CONSERVATION CRIME AND PANGOLIN POACHING: TENSIONS BETWEEN CUSTOMARY USE AND CONSERVATION LAW https://upjournals.up.ac.za/index.php/pslr/article/view/3679 <p>In this paper, the author assesses the interplay between African customary use of pangolin and conservation law and to what extent the existing legislative framework undermines the heritage value of pangolins for customary communities. The author discusses the extent to which the laws governing pangolin protection in South Africa impose limitations on the customary use of pangolin for customary communities. Finally, the author considers whether customary law rights of access to and use of pangolin can or ought to coexist with conservation law. This paper aims to illustrate that the conservation laws regulating pangolin in South Africa impose excessive limitations on customary use and access to pangolin.</p> Nicola Irving Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3679 RACIAL EPISTEMOLOGY AT A TIME OF A PANDEMIC: A SYNOPSIS OF SOUTH AFRICA’S PERSISTING INEQUALITIES THROUGH THE LENS OF ‘#FEESMUSTFALL’ AND ‘#FREEDECOLONISEDEDUCATION’ https://upjournals.up.ac.za/index.php/pslr/article/view/3655 <p>The creation of South Africa was accompanied by the creation of an education system that would reflect Eurocentric ideologies, concepts, and livelihoods. When South Africa attained ‘democracy’, this creation was not abolished. A direct consequence of this was that the racial epistemology of conquest continues. The #feesmustfall and #FreeDeclonisedEducation protests were a response to the persistence of this creation. However, these calls were also not realised. Which means that the racial epistemology of conquest persists. In this article I attempt to show how the realisation of these calls could have dealt with the challenges that the education system and sector faces as a result of the coronavirus pandemic. I do this by problematising the exclusionary nature of the type of education and learning that is prevalent in South Africa. I opine that in order for the racial ontology of conquest to be abolished, there should be free and decolonised education.</p> Gudani Tshikota Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3655 POLICE AND POWER IN A PANDEMIC: REFLECTIONS ON THE RISE OF POLICE BRUTALITY DURING COVID- 19 AND ITS IMPLICATIONS ON SOCIAL JUSTICE IN SOUTH AFRICA https://upjournals.up.ac.za/index.php/pslr/article/view/3657 <p>The global COVID-19 pandemic came at a time of already increasing police brutality and has since accelerated this nationwide issue. This increasingly frequent behaviour is due to the calling of a state of disaster, the limiting of fundamental rights by force, and the overlooking of essential methods that help to hold the police accountable. This article will critically reflect on the increase in police brutality in South Africa during the initial lockdown period, highlighting how it affects social justice.</p> Mason du Plessis Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3657 COVID-19 AND ACCESS TO REPRODUCTIVE HEALTH RIGHTS FOR WOMEN IN HIGHER EDUCATION INSTITUTIONS IN SOUTH AFRICA https://upjournals.up.ac.za/index.php/pslr/article/view/3659 <p>Reproductive health rights are rights that are internationally and domestically recognised as human rights. The right to contraception forms part of reproductive health rights. These rights have a great impact on the social, political, and economic well-being of women. This paper studies the impact that COVID-19 has had on health, specifically on access to contraceptives, as these services have not been deemed as essential during the lockdown. The lockdown has seen the closure of higher education institutions like colleges, Technical Vocational Education and Training (TVET) colleges, universities, and universities of technologies, where the majority of women who depend on public health facilities access their contraceptives, resulting in these women having to access contraceptives from their home communities. This paper further studies the challenges that these women face in accessing contraceptives from their homes, such as stigma and the lack of information that accompanies it. Lastly, this paper finds that the women that access their contraceptives in institutions of higher learning do not have any alternatives. It finds that the closure of these institutions has resulted in these women being stranded without contraceptives, resulting in a violation of their reproductive health rights.</p> Thuli Zulu Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3659 THE IMPACT OF COVID-19 ON HUMAN RIGHTS: A CRITICAL ANALYSIS OF THE LAWFULNESS OF MEASURES IMPOSED BY STATES DURING THE PANDEMIC UNDER INTERNATIONAL LAW https://upjournals.up.ac.za/index.php/pslr/article/view/3660 <p>The COVID-19 pandemic provided ideal conditions for the violation of human rights. In efforts to curb the spread of the virus, numerous states violated their international law obligations outlined in treaties and customary international law. This article aims to analyse state responses to the global pandemic and will consider how their lawfulness should be measured. To this end, the framework of due diligence is utilised as a system to regulate and assess the legality of state actions amidst times of emergency. Furthermore, this article argues that the principle of due diligence must be developed to sufficiently regulate instances of derogation that extend beyond restrictions. This development must also be informed by an intersectional approach that prioritises the protection of vulnerable groups, owing to the disproportionate impact of COVID-19 on these communities. Stemming from this analysis, the article will conclude by considering the landscape of state actions in handling COVID-19 under the banner of due diligence and imagines a construction of international law that more adequately protects human rights amid regional and global crises.</p> Kyle Alex Cloete Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3660 HERD IMMUNITY OR POLITICAL POWER? https://upjournals.up.ac.za/index.php/pslr/article/view/3662 <p>This article evaluates the vaccine rollout plan in South Africa and whether it intends to achieve herd immunity or gain more power for the government. The importance of South Africa achieving herd immunity will be considered alongside the restrictions preventing the private sector from gaining access to vaccines thus, arguably, slowing the process of achieving herd immunity. Finally, this article explores different strategies that the government could consider in order to accelerate the vaccination rollout without relinquishing its political power.</p> Samantha Smit Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3662 THE DEFENSIBILITY OF SOCIO-ECONOMIC RIGHTS IN A STATE OF DISASTER: A SOUTH AFRICAN PERSPECTIVE https://upjournals.up.ac.za/index.php/pslr/article/view/3663 <p>The drafting of the final Constitution was a deliberate act of imposing an obligation on the newly formed democratic South Africa to recognise socio-economic rights. This was an important step in the transformation process brought about due to the transformative nature of the Constitution (better known as transformative constitutionalism), in a country that had witnessed the gross violation of human rights and institutionalised discrimination that considerably led to many of its citizens living in dire poverty through social and economic exclusion. This discussion aims to explore the justifiability of these constitutionally protected rights. In doing so, an analysis of international standards will be considered in determining whether the socio-economic rights could be said to be justifiable, followed by the constitutional influence, along with other legislative sources and judicial precedents on the matter including the role propagated by the value of ubuntu.</p> Ishmael Khayelihle Mbambo Copyright (c) 2021 The Pretoria Student Law Review 2021-11-08 2021-11-08 15 1 10.29053/pslr.v15i1.3663